Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SC061749A
BUTZ, J.In return for dismissal of nine other counts and enhancement allegations, defendant Michael Stephen Peterson pleaded no contest in November 1997 to one count of lewd acts on the body of a child of 14 years when defendant was at least 10 years older (Pen. Code, § 288, subd. (c)(1)) and one count of encouraging a minor to use methamphetamine (Health & Saf. Code, § 11353).
Undesignated statutory references are to the Penal Code.
In September 2007, after serving his stipulated sentence of three years eight months in state prison and completing four years of parole, defendant filed a motion to enforce a claimed plea bargain term that he could extinguish the requirement of lifetime registration as a sex offender or, in the alternative, to vacate his convictions and guilty plea. He appeals from denial of the motion. He contends that the trial court abused its discretion in failing to vacate the plea because he was not fully advised of the consequence that he register as a sex offender. Finding no merit in the contention of error, we shall affirm the order denying defendant’s motion to vacate the plea.
FACTUAL AND PROCEDURAL BACKGROUND
In November of 1996, police officers went to defendant’s home seeking information about a 14-year-old runaway. Defendant, then age 34, answered the door in his underwear. The child was found in the house. She related she had been having intercourse and oral sex with defendant for at least a year. During that time he often supplied her with controlled substances, including methamphetamine. When he was informed he was being arrested, inter alia, for oral copulation with the child, he responded that although they had had sex, and he got a “blow job” from her, there was no oral copulation.
Defendant accepted the aforementioned plea bargain on November 5, 1997. The bargain provided for no probation and a prison term of three years eight months. Defendant and his attorney had previously declared in writing that his attorney had informed him of the consequences of the plea including registration as a sex offender. During the taking of the plea he acknowledged he understood that he would be ordered to register as a sex offender.
On December 5, 1997, after sentence was imposed pursuant to the bargain, the court was informing him of his appeal rights. The prosecutor noted that defendant was required to register as a sex offender. Defendant personally interjected: “Is there any way I’m ever going to be able to get off that?” The court replied that it was not going to go into that subject, but noted: “[T]he code provides a way in which you can receive a pardon or certificate of rehabilitation and relief from [the] duty to register. It’s contained in [section] 290.5 of the Penal Code.” Defendant again interjected with a question about how that would work. The court replied that it was not going to explain the process, but that defendant was going to have to register as a sex offender in any town or county where he lived.
The following brief colloquy ensued:
“[DEFENDANT]: It doesn’t say for how long.
“[PROSECUTOR]: For life.
“[THE COURT]: For life, until you get a certificate of rehabilitation or a pardon.
“[DEFENDANT]: Okay.”
Defendant was remanded to serve his term.
On September 27, 2007, defendant filed a notice of motion titled a motion to enforce his plea arrangement or, in the alternative, to vacate his plea. The motion was supported with a defective declaration of defendant stating, in pertinent part, as follows:
The defective declaration does not state the date or place of execution. (Code Civ. Proc., § 2015.5.)
“2. . . . I was never told I could not get off of sex registration and believed that sex registration would end when my sentence was completed. [¶] . . . [¶]
“4. I was also very concerned about the requirements to register as a sex offender. I asked about this. I was told by the judge that the requirement would go away when I completed [my] period of parole. I believed that this was the case with statutory rape and therefore I believed the judge when he told me that it would happen with the charge to which I had pleaded. Had I been told differently, I would have told the judge that there was legal cause to not sentence me; that I had pleaded expecting the same treatment as one convicted of statutory rape.
“5. When I completed my parole and went to get my registration removed, I was informed that it was a life-time [sic] registration requirement. I was completely surprised by this. Shortly thereafter I went to talk with counsel. I arranged to retain counsel to raise this issue.”
The motion came on for hearing on November 19, 2007. The court denied the motion. It explained that the plea bargain did not include a guarantee that the registration requirement was going to go away when defendant completed parole: “[T]he record is clear to this Court that [defendant] was told that it was a lifetime registration requirement, that if he wanted to try to get rid of that, there w[ere] these other remedies that he could seek out. But there was no guarantee that that was ever going to happen. And it certainly wasn’t a part of his plea agreement. So it wasn’t the bargain that he made in this case.”
On December 27, 2007, defendant filed a notice of appeal from the order denying the motion.
DISCUSSION
Defendant contends that the trial court erred in denying the motion to vacate the plea. He argues that the trial court erred in failing to advise him that the registration requirement was an inexorable lifetime requirement and that he suffered prejudice thereby as he would have rejected the plea bargain had he been correctly informed of this aspect of the plea. The argument is unpersuasive and the contention of error is without merit.
I. Defendant’s Appeal Is Not Procedurally Barred
Preliminarily, we address the question of timeliness of this appeal. The Attorney General submits that the appeal is untimely because no appeal was taken from the judgment of conviction. Ordinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground, whether presented to the trial court prior to judgment of conviction or not, which could have been reviewed on appeal from the judgment. (See, e.g., People v. Thomas (1959) 52 Cal.2d 521, 528.) In such a situation, appeal from the judgment is an adequate remedy.
However, a recognized exception to the general rule of nonappealability is when the record on appeal would not have shown the error. (See, e.g., People v. Totari (2002) 28 Cal.4th 876, 882.) Here defendant’s claim critically depends upon facts outside the record at the time when an appeal might have been taken. The gist of his claim is that he was uninformed and unaware at the time of his plea bargain that the sex offender registration requirement was immutable and believed he would be able to terminate that requirement after completion of parole. Accordingly, if defendant’s claim were deemed truthful, a postjudgment motion to vacate could lie and the appeal therefrom would be proper. (See generally, e.g., People v. Painter (1963) 214 Cal.App.2d 93, 95-96 [mistaken belief in the false promise of the district attorney that defendant would receive only a jail sentence].)
The Attorney General suggests that such a postjudgment attack could only be brought as a petition for a writ of coram nobis. (See, e.g., 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 182, pp. 210-212.) He argues that it would be improper to consider this, as defendant requests, as an appeal from denial of such a writ, because the matter was not so titled in the trial court. Perhaps because there is no statutory procedure for coram nobis relief, courts are quite permissive as to the formalities for seeking this relief. “[M]any cases have pointed out that the remedy is, in effect, merely a motion to vacate the judgment, and might appropriately be so designated.” (Id., § 189, p. 218; see also People v. Gallardo (2000) 77 Cal.App.4th 971, 982 [“For better or worse, the terms ‘motion to vacate’ and ‘petition for writ of error coram nobis’ are often used interchangeably and the two procedures are similar in scope and effect”]; Civ. Code, § 3528.) Accordingly, regardless of the nomenclature, we will treat the matter as an appeal from an order denying a motion for coram nobis relief.
We assume, arguendo, though we imply no view on the issue, that defendant’s claim would be amenable to coram nobis relief as one of mistake of fact. (But see People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 .)
II. Defendant’s Motion Was Properly Denied
Turning to the merits, defendant’s argument at the November 2007 hearing on his motion to enforce or vacate the plea bargain was: (1) a term of the plea bargain was that the requirement of registering as a sex offender could be removed, (2) the inability to remove it under section 290.5 was a breach of the bargain, and (3) the only available remedy for the breach was to remove the registration requirement. The trial court correctly responded that a promise that sex offender registration would terminate was not a term of the plea bargain.
On appeal, defendant abandons the theory of his motion to vacate the plea in the trial court. He makes a new argument founded on a related but distinct legal principle (see People v. Walker (1991) 54 Cal.3d 1013, 1020): that the trial court should have vacated the pleas on the ground defendant was improperly and prejudicially misadvised by the court of the direct consequences of his plea. Defendant submits that this case is analogous to People v. Zaidi (2007) 147 Cal.App.4th 1470. In Zaidi, the defendant was not informed in any way that sex offender registration was a lifetime consequence of conviction of the charged sex offense. (Id. at p. 1477.) On the contrary, the probation department recommendations and the way the trial court articulated the sentence reasonably implied that the registration would last only the length of probation. (Id. at p. 1489.) Zaidi moved to vacate the plea bargain on the ground of misadvisement nine weeks after the time of sentencing (id. at pp. 1477-1478, 1489), averring that: “Had he known it was a lifetime requirement, he would never have entered his plea and would have insisted on going to trial.” (Id. at pp. 1488-1489.)
The claimed analogy of this case to Zaidi is far-fetched. Here defendant was informed that the registration requirement was for a lifetime, until and unless he obtained a pardon. The trial court did incorrectly suggest that a pardon might be pursued under the certificate of rehabilitation mechanism provided for in section 290.5. However, there is nothing in the trial court’s statements or elsewhere in the record to support a reasonable implication that this procedure was ministerial and likely to result in receipt of a pardon. Unlike Zaidi, defendant in this case did not promptly investigate and pursue a remedy; rather, he waited a decade before making a claim that he was misled. Finally, there is not even an unequivocal averment in this case that defendant would have refused the plea bargain if he had been told that obtaining relief from sex offender registration was very unlikely or impossible.
See section 290.5, subdivision (a)(2)(M).
In any event, defendant’s new theory on appeal is not cognizable. He tried his motion below on the theory that a term of the plea bargain was that the requirement of registering as a sex offender could be removed under section 290.5. The trial court found that was not correct and defendant does not take issue with that finding. To allow him to adopt a new and different theory on appeal would be unfair to the trial court and to the People and we decline to do so under the doctrine of theory of trial. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 407, pp. 466-468.)
If defendant had tendered this theory in the trial court, it could, and we think very likely would, have been rejected, inter alia, on grounds that (1) the application for coram nobis relief was untimely (see, e.g., People v. Shipman (1965) 62 Cal.2d 226, 230) and (2) defendant was not prejudiced (see In re Moser (1993) 6 Cal.4th 342, 355-357) by the trial court’s incorrect suggestion, because he would have stuck to the highly beneficial bargain regardless.
For all the foregoing reasons, defendant’s contention of error is not meritorious.
DISPOSITION
The order denying defendant’s motion to enforce or vacate the plea is affirmed.
We concur: MORRISON, Acting P. J., CANTIL-SAKAUYE, J.