Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR547840.
NEEDHAM, J.
Lonnie Wise appeals from a judgment of conviction and sentence imposed after he entered a plea of no contest to a sexual offense requiring registration as a sex offender. (Pen. Code, §§ 220, subd. (a); 290.) He contends the conviction should be reversed because the trial court failed to advise him, before accepting his plea, of the lifetime nature of the registration requirement. Based on the record in this appeal, we will affirm the judgment.
Unless otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Wise was charged with seven counts of sex crimes perpetrated against “Jane Doe” when she was 16 years of age. (§§ 261, subd. (a)(2); 220, subd. (a); 664/288a, subd. (a); 288a, subd. (b)(1); 664/288a, subd. (b)(1); 261.5, subd. (c); 272, subd. (a)(1).) He eventually agreed to plead no contest to the second of those counts, alleged as an assault with intent to commit “rape, sodomy, oral copulation and a violation of section 264.1, 288, and 289.” (§ 220, subd. (a).) Wise signed a waiver and plea form expressly informing him that registration as a “sex... offender” would be one of the consequences of his plea.
At the plea hearing in January 2009, Wise confirmed to the court that he had read the waiver form carefully, discussed it with his attorney, and had no questions about the rights he was waiving. The court accepted Wise’s plea.
About three months later in April 2009, Wise had obtained new counsel and filed a motion to withdraw his plea, on the following grounds: (1) his attorney at the time of his plea (Arack) made certain representations regarding the cost of taking the case to trial and “turning him over” to the Public Defender if he could not afford private representation; (2) Arack failed to adequately advise Wise about potential defenses to the charges; (3) Arack failed to advise him adequately of the consequences of entering his plea; and (4) Wise suffered from duress as a result of the threatening conduct of the victim’s family. As to the plea consequences that his counsel allegedly failed to discuss, the motion asserted that Arack did not sufficiently advise him regarding the statutory limit on a grant of probation, other potential probationary terms to be imposed, and the fact that the trial court could consider for sentencing purposes the charges to which Wise was not entering a no contest plea. Nowhere in the motion or supporting documents did Wise assert that Arack failed to advise him of the lifetime nature of the registration requirement, that Wise was unaware the requirement was for life when he entered his plea, that he would not have entered his plea if he had known about the true duration of the requirement, or that he sought to withdraw his plea on that ground.
At the hearing on Wise’s motion, Wise did not contend that he was uninformed of the lifetime nature of the registration requirement. Arack testified that Wise’s main concern in the discussion of the terms of the plea agreement was, in fact, the registration requirement: “I think we spent more time on that. It’s rather unusual, given the nature of the case, in which this is the most significant concern of a client.” The court denied Wise’s motion to withdraw his plea.
The probation department’s pre-sentence report recommended that Wise be required to “register with local law enforcement authorities pursuant to Section 290 PC” and that Wise have his “290 PC registration verification with him at all times.”
At the sentencing hearing, the trial court suspended imposition of sentence and placed Wise on probation for four years. The court ordered Wise to “register with local law enforcement under 290 of the Penal Code” and advised him: “You have to have your 290 registration verification with you at all times.” Pursuant to the terms of the plea agreement, all other counts were dismissed.
Wise filed a notice of appeal, purporting to challenge both the denial of Wise’s motion to withdraw his no contest plea and the validity of the plea. Attached to the appeal was a request for a certificate of probable cause, based on essentially the same grounds as Wise’s motion to withdraw his plea. The notice of appeal and the request for a probable cause certificate did not refer to the failure to advise Wise of the lifetime nature of the registration requirement. Wise’s request for a certificate of probable cause was granted.
II. DISCUSSION
Wise contends that his conviction must be reversed because he was not advised of the lifetime nature of the registration requirement when he entered his no contest plea. Based on the record on appeal, he fails to establish that he is entitled to relief.
The trial court errs if it fails to advise the defendant before his plea that the requirement of registration as a sex offender lasts for the defendant’s entire life. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.) However, this error compels reversal of the conviction only if the defendant establishes that the error was prejudicial. (Id. at pp. 1487-1490.) Specifically, the defendant must show, by evidence in the record on appeal, that he would not have entered his plea if he had been properly advised. (Ibid; People v. McClellan (1993) 6 Cal.4th 367, 378 (McClellan).)
In the matter before us, the record on appeal shows neither that Wise was unaware of the lifetime nature of the requirement, nor that he would not have entered his plea if he had been informed about it. Wise plainly knew he would have to register as a sex offender, as specified in the waiver and plea agreement, the court’s advisement at sentencing, and Arack’s testimony concerning their discussions about the requirement. Although Wise argues in his appellate briefs that he was unaware the requirement was for life and he would not have entered his plea if he had known about it, there is no evidence in the record to support these assertions. At no point in his motion to withdraw his plea, the hearing on that motion, the sentencing hearing, or his notice of appeal and request for a certificate of probable cause did Wise ever assert that he was uninformed of the lifetime nature of the requirement or that he would not have entered his plea if he had known that the registration requirement was for life. As Wise acknowledges in his opening brief, “The record does not affirmatively show that appellant would not have pleaded ‘no contest’ if he had known that sex-offender registration would be for the rest of his life.... “ (Emphasis in original.) Wise therefore fails to establish prejudice and is not entitled to reversal of his conviction. (McClellan, supra, 6 Cal.4th at p. 378.)
McClellan is instructive on this point. There, the trial court failed to advise the defendant, before the defendant pled guilty, that he would have to register as a sex offender. Our Supreme Court held that the defendant was not entitled to withdraw his plea, however, because the record “fail[ed] to establish that defendant was prejudiced by the trial court’s failure to advise him of the registration requirement.” (McClellan, supra, 6 Cal.4th at p. 378.) The McClellan court explained: “Because the record of the trial court proceedings contains no evidence (nor even an assertion) concerning the bearing of a registration requirement upon defendant’s decision to plead guilty, the prosecution never has had an opportunity to contest the assertion made by defendant on appeal, and the trial court had no occasion to pass upon the veracity of defendant’s present claim.... Although defendant alleges that had he properly been advised, he would not have entered his plea of guilty, there is nothing in the record on appeal to support this contention. Thus, we conclude defendant has failed to meet his burden of establishing prejudice.” (Ibid.)
Also instructive is Zaidi, which explained why the defendant in Zaidi had shown the error to be prejudicial, while the defendant in McClellan had not. “In contrast to the defendant in McClellan who did not raise the issue of registration at all until his amended notice of appeal, [Zaidi] objected to imposition of registration under section 290 at the sentencing hearing. Within weeks of sentencing [Zaidi] 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. [Zaidi] 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 [Zaidi] 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 [Zaidi’s] assertion that he understood that his registration requirement would be only for the duration of his probation....” (Zaidi, supra, 147 Cal.App.4th at pp. 1489-1490, italics added.) Under Zaidi and McClellan, Wise has failed to demonstrate the prejudice required for relief.
Wise argues that under federal law (apparently as opposed to Zaidi), his plea was involuntary, and not knowing and intelligent, because the lifetime nature of the registration was a direct penal consequence of his plea, and his conviction must be reversed without the need to demonstrate prejudice. (Citing Boykin v. Alabama (1969) 395 U.S. 238, 243-244 (Boykin); People v. Howard (1992) 1 Cal.4th 1132, 1175, 1177.) Essentially, Wise argues that there cannot be a knowing and intelligent plea unless the defendant knows of the direct consequences of the plea; therefore, without evidence that Wise knew of a lifetime registration requirement, the acceptance of his plea (or the refusal to let him withdraw it) violated his due process rights, and no showing of prejudice is necessary.
We disagree. Zaidi relied on Boykin and the theory that the court had failed to advise the defendant of the direct consequences of his plea, yet it imposed the requirement that the defendant demonstrate prejudice. (Zaidi, supra, 147 Cal.App.4th at pp. 1481, 1487.) Likewise, McClellan involved the failure to advise the defendant of the direct consequences of his plea, yet the court required the defendant to demonstrate prejudice. (McClellan, supra, 6 Cal.4th at pp. 374, 376-377.)
In any event, the proper analysis was set forth long ago by our Supreme Court in People v. Walker (1991) 54 Cal.3d 1013, articulating the difference between the failure to admonish the defendant of his constitutional rights and the failure to advise the defendant of the consequences of his plea. “[B]efore taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea.... Unlike the admonition of constitutional rights, however, advisement as to the consequences of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is ‘a judicially declared rule of criminal procedure.’ [Citations.] The nonconstitutional basis of the rule has two consequences pertinent to this case. [¶] First, ‘[u]nlike an uninformed waiver of the specified constitutional rights which renders a plea or admission involuntary and requires that it be set aside, an uninformed waiver based on the failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused.’ [Citation.] ‘A showing of prejudice requires the appellant to demonstrate that it is reasonably probable he would not have entered his plea if he had been [properly advised].’” (Id. at pp. 1022-1023, italics added.) Wise has not met this burden.
Wise also contends the record does show that he was unaware of the duration of the registration requirement, that he was very concerned about the registration requirement, and that he ended up seeking to withdraw the plea. There is, however, no affirmative evidence that Wise was unaware of the duration of the requirement. Although the court mentioned the registration requirement as a condition of probation, it did not state that the requirement would extend only during the probation period. Moreover, Wise’s expression of concern about the registration requirement to his attorney and his later attempt to withdraw his plea – on grounds other than the lifetime nature of the registration requirement – do not show he was unaware of the duration of the requirement or that he would not have pleaded no contest if he had known about it.
Based on the record in this appeal, Wise has failed to establish reversible error.
In addition to this appeal, Wise has filed a petition for writ of habeas corpus on the ground that the court erred in failing to advise him of the lifetime nature of the registration requirement and attorney Arack failed to provide effective assistance of counsel. In the habeas proceeding, Wise makes allegations and presents evidence beyond what is in the record in this appeal. By order entered on the date of the filing of this opinion, we are issuing an order to show cause in the habeas proceeding.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., BRUINIERS, J.
We note as well that appellant filed a request for judicial notice in this matter on April 9, 2010. We deferred ruling on the request until deciding the merits of the case. We now grant the request.