Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC089918. Joseph S. Biderman, Judge.
Tiwalola Oladiji Shoyinka, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Janet E. Neeley and Michael C. Keller, Deputy Attorneys General, for Defendant and Respondent.
ARMSTRONG, J.
Tiwalola Oladiji Shoyinka appeals the judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of respondent State of California to appellant's complaint for declaratory relief. Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On June 1, 2006, appellant filed a complaint for declaratory relief seeking to be relieved from the sex offender registration requirements of Penal Code section 290. The complaint alleged that on October 24, 2001, appellant had been tried and convicted in Los Angeles Municipal Court of the misdemeanor offenses of sexual battery in violation of section 243.4 and annoying or molesting a child under the age of 18 in violation of section 647.6, subdivision (a), and was sentenced to county jail without being placed on probation. Appellant further alleged that on May 10, 2006, the superior court granted his petition pursuant to section 1203.4a to expunge those convictions.
Further statutory references are to this code.
In his complaint for declaratory relief, appellant argued that he was no longer required to register as a sex offender because his conviction had been expunged under section 1203.4a. Respondent demurred to the complaint, arguing that pursuant to section 290, subdivision (a)(2)(F), appellant was not relieved of the duty to register as a sex offender merely by obtaining a dismissal pursuant to section 1203.4a. The trial court agreed, and sustained the demurrer without leave to amend. Appellant timely appealed the subsequent judgment of dismissal.
CONTENTIONS
Appellant contends that the trial court erred by sustaining respondent's demurrer without leave to amend. Appellant repeats his claim that he should no longer be required to register as a sex offender since his section 1203.4a petition to expunge his criminal conviction was granted. He also argues that the lower court erred by not granting leave to amend so that he could allege (1) that the court which presided over the underlying criminal case lacked jurisdiction, and (2) that lifetime sex offender registration is cruel and unusual punishment as applied to him.
DISCUSSION
1. Effect of expungement of underlying conviction on registration requirement
Appellant maintains that he cannot be required to register as a sex offender based upon a conviction which has been expunged. We do not agree.
Section 1203.4a, the statute pursuant to which appellant's convictions were expunged, provides in pertinent part as follows: "(a) Every defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with an performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of 'not guilty' or if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty and in either case the court shall thereupon dismiss the accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, . . ."
Appellant argues that sex offender registration is a penalty or disability resulting from his convictions, since expunged, from which he "shall thereafter be released." However, our Supreme Court has determined that sex offender registration does not constitute a penalty or disability, but rather is a nonpunitive regulatory measure that provides for the collection of information about the identity and whereabouts of convicted sex offenders, thereby making it more difficult for such persons to reoffend without being caught. (In re Alva (2004) 33 Cal.4th 254, 287-292.) Consequently, appellant's argument is not persuasive.
Section 290 specifically provides that appellant must continue to register as a sex offender. That statute reads, in pertinent part: "(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while residing in California . . . shall be required to register with the chief of police of the city in which he or she is residing . . . within five working days of coming into, or changing his or her residence within, any city . . . ." Appellant acknowledges that he is a "person described in paragraph (2)," that is, a person convicted of a sex offense requiring registration under the statute. He is therefore required to register as a sex offender.
Subdivision (a)(2)(F) provides that included among the persons required to register is "Any person required to register pursuant to any provision of this section, regardless of whether the person's conviction has been dismissed pursuant to
Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5." This subdivision does not add any new category of persons required to register, but merely explains that those whose convictions have been expunged pursuant to section 1203.4 must continue to register unless they receive a certificate of rehabilitation. This subdivision has no application to this case, since appellant's convictions were not expunged pursuant to section 1203.4.
Nevertheless, appellant is a person required to register pursuant to section 290, subdivision (a)(2)(A); the registration requirement is not a penalty or disability affected by the expungement of appellant's convictions; he therefore must register.
2. Jurisdictional challenge to underlying criminal conviction
Appellant contends that the Los Angeles Municipal Court which presided over his 2001 criminal trial lacked jurisdiction because, at that time, only the superior court could preside over trials involving "infamous crimes" with fines exceeding $2,000; that is, felony charges. The contention lacks merit.
In his complaint, appellant acknowledged that his underlying criminal offenses were misdemeanors. Thus, appellant's own documents demonstrate that his jurisdictional claim is specious.
3. Appellant's claim that a lifetime registration requirement constitutes cruel and unusual punishment
Finally, appellant contends he was entitled to leave to amend his complaint to allege that lifetime compliance with the sex offender registration requirements constitutes cruel and unusual punishment. However, our Supreme Court has concluded precisely the opposite: "mandatory sex offender registration, as provided by section 290, is not 'punishment' for purposes of either the Eighth Amendment [to the United States Constitution] or article I, section 17 of the California Constitution." (In re Alva, supra, 33 Cal.4th at p. 292.) We are bound by that ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.