Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. E044925, Stephen Graham, Judge.
McINTYRE, J.
After a jury convicted Ralph Robert McMoran of certain charges, the court found true an allegation that he suffered a prior arson conviction, denied his motion to strike the conviction, and used the conviction to enhance his sentence. McMoran claims the trial court erred in denying his motion to strike because the prior conviction was based on an involuntary guilty plea. He also asserts that the abstract of judgment should be amended to reflect a parole revocation fine in the same amount as the restitution fine. The People concede the second point and we agree it is appropriate to modify the judgment. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2007, the People filed an information charging McMoran with several counts relating to an automobile theft and an automobile burglary. The information alleged a number of enhancements, including an allegation that in 2001, McMoran was convicted of arson, a serious felony. A jury returned guilty verdicts on several counts and, in a bifurcated proceeding, found true the strike prior conviction.
McMoran, acting in propria persona, filed a motion to strike his prior felony arson conviction on the ground that he had not been advised of the mandatory lifetime registration requirement before he pleaded guilty to arson and had he been properly advised, he would not have pleaded guilty. McMoran attached a felony plea form that he executed in 2001 and a copy of the reporter's transcript for the change of plea hearing. In the written plea form, McMoran did not initial the acknowledgment that he would be required to register his residence with law enforcement. The transcript showed that in taking McMoran's guilty plea, the trial court did not advise him of the consequences of his plea, but rather referred him to the plea form and the conditions of probation form that he had signed.
In opposition to the motion, the People submitted the court minutes from McMoran's change of plea hearing, which stated that he had been advised of the consequences of his plea and listed, among the terms of probation, that he immediately register his residence with law enforcement. Further court minutes listed the conditions of his probation and again stated that he was required to register. The trial court denied the motion to strike, noting that the registration requirement appeared in the court minutes and also appeared as a term of McMoran's probation.
Before sentencing, McMoran, through counsel, filed another motion to strike the prior conviction on the ground the court never advised him that the registration requirement applied for life. The People again opposed the motion and submitted a copy of McMoran's signed probation terms, which revealed that McMoran was required to register with law enforcement per "[Penal Code section] 457.1." The trial court denied the motion and imposed sentence. McMoran timely appealed.
DISCUSSION
I. Motion to Strike
McMoran contends the trial court erred when it denied the motions to strike his 2001 arson conviction because he pleaded guilty to the offense without receiving notification of the lifetime arson registration requirement. We disagree.
When sentencing a criminal defendant, a trial court may not rely on a prior felony conviction obtained in violation of the defendant's constitutional rights. (People v. Allen (1999) 21 Cal.4th 424, 426-427.) For example, a criminal defendant can collaterally attack a prior conviction via a motion to strike based on denial of counsel (Garcia v. Superior Court (1997) 14 Cal.4th 953, 963 (Garcia)) or failure to observe a defendant's Boykin-Tahl rights to a jury trial, silence, and confrontation (People v. Sumstine (1984) 36 Cal.3d 909, 918-919, citing Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122).
Criminal defendants, however, cannot challenge a prior conviction based on a claim of ineffective assistance of counsel because such a challenge often requires (1) factual investigations of prior counsel's conduct and strategic decisions, (2) reconstruction of remote events, and (3) review of potentially voluminous records. (Garcia, supra, 14 Cal.4th at pp. 962, 965-966.) The Garcia court explained that permitting collateral challenges based on ineffective assistance of counsel undermined the important policies of efficient and effective judicial administration of justice and the important interest of promoting the finality of judgments. (Id. at pp. 962, 965.)
McMoran has not cited any authority to support his contention that the court's failure to advise him of the lifetime arson registration requirement before he pleaded guilty to arson constituted an error of constitutional dimension that can be challenged by way of a motion to strike. Although a trial court must advise defendants of the direct consequences of a guilty plea, including any registration requirements (People v. McClellan (1993) 6 Cal.4th 367, 375-376, & fn. 8), this requirement is not constitutionally compelled (People v. Edelbacher (1989) 47 Cal.3d 983, 1031). Rather, the requirement that defendants be advised of the direct consequences of a guilty plea is a judicially declared rule of criminal procedure requiring that the plea be set aside only if the defendant shows prejudice. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Additionally, allowing defendants to collaterally challenge a prior conviction based on claims they were misinformed about the consequences of their pleas would require the court to determine whether there was a waiver and if not, whether there was any prejudice. Such inquires would undermine the policy considerations identified in Garcia. (Garcia, supra, 14 Cal.4th at pp. 962, 965-966.)
Because a failure to advise a defendant of the penal consequences of a plea does not constitute constitutional error, McMoran cannot collaterally attack the prior conviction by way of a motion to strike the conviction. (People v. Sumstine, supra, 36 Cal.3d at p. 922 ["a defendant seeking to challenge a prior conviction on any ground must allege actual denial of his constitutional rights"].) McMoran must proceed by way of a petition for habeas corpus if he wishes to challenge the constitutional validity of his 2001 conviction. If such a challenge is successful and the prior conviction is set aside, the conviction no longer constitutes a proper basis for increased punishment for this subsequent offense, and McMoran may then obtain reduction of the sentence that was imposed on the basis of the invalid prior conviction. (Garcia, supra, 14 Cal.4th at p. 966.)
McMoran cites People v. Zaidi (2007) 147 Cal.App.4th 1470 (Zaidi) for the proposition that his prior conviction should be stricken because he was not advised that arson registration was a lifetime requirement before he pleaded guilty. McMoran's reliance on Zaidi is misplaced because the defendant therein was not seeking to collaterally attack a prior conviction; rather, he timely moved to withdraw his guilty plea based on the court's failure to advise him of the lifetime registration requirement for a sex offender. (Id. at pp. 1479, 1481.) Accordingly, the trial court did not err when it denied McMoran's motions to strike.
II. Revocation Fine
The trial court ordered McMoran "to pay a restitution fine of $6,000, less $1,700 restitution in fact," payable to two named victims and a parole revocation fine in the amount of $6,000.
McMoran contends, and the People concede, that the abstract of judgment must be modified to reflect a Penal Code section 1202.45 parole revocation fine in the same amount as the Penal Code section 1202.4, subdivision (b) restitution fine. We agree, because the statute requires that parole revocation fine be "in the same amount" as the restitution fine. (Pen. Code, § 1202.45.)
DISPOSITION
The judgment is ordered modified to impose a Penal Code section 1202.45 parole revocation fine of $4,300. As modified, the judgment is affirmed. The trial court is directed to amend its December 21, 2007 minutes and the abstract of judgment in accordance herewith and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., NARES, J.