Opinion
H031749
4-28-2008
THE PEOPLE, Plaintiff and Respondent, v. VARIAN WHITE, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant filed an unverified coram nobis petition in the superior court. In his petition, he sought an order discharging him from the obligation to register as a sex offender. Relying on the California Supreme Courts decision in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), defendant asserted that his 1984 Penal Code section 288a, subdivision (b)(1) conviction could not serve as the basis for a mandatory registration requirement. The superior court summarily denied his petition. On appeal, although he concedes that he was not entitled to a writ of error coram nobis, defendant contends that the superior court erred in failing to treat his petition as one seeking a writ of mandate. We conclude that the superior court did not err in denying defendants petition because his petition did not allege the requisite facts that, if true, would have established his entitlement to mandamus relief. We affirm the superior courts order.
I. Background
In March 2007, defendant, who was in prison at the time, filed an unverified pro se pleading entitled "Writ of Error Coram Nobis" in the superior court. His pleading asked the court to "correct an un-constitutional part of the sentence in this case." He identified the "un-constitutional part" of his sentence as the part that "requires defendant to register as a sex offender per Penal Code sec. # 290."
Defendants pleading explained that he had been convicted in 1984 of violating Penal Code section 288a, subdivision (b)(1) and ordered to register as a sex offender. A copy of the abstract of judgment from his 1984 conviction was attached to his pleading. The abstract showed that defendant had been sentenced to prison for his offense. Defendant noted that the California Supreme Court held in Hofsheier that the imposition of mandatory sex offender registration for a Penal Code section 288a, subdivision (b)(1) conviction violates equal protection. (Hofsheier, supra, 37 Cal.4th at p. 1192.) His pleading prayed that the superior court "discharge me from the duty to register" and "issue an order to the Department of Justice, to remove me (Varian D. White) from its [sic] sex offender registry." No proof of service was filed indicating that defendants petition had been served on anyone. No opposition was filed, and no hearing was held.
In Hofsheier, the defendant appealed after he was convicted of a violating Penal Code section 288a, subdivision (b)(1), placed on probation, and ordered to register as a sex offender. He challenged the registration requirement on direct appeal, and the California Supreme Court remanded the matter for the trial court to decide whether to impose discretionary sex offender registration. (Hofsheier, supra, 37 Cal.4th at p. 1192.) "Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification." (Pen. Code, § 290.006, italics added.) Discretionary registration did not exist at the time of defendants 1984 offense, so no such finding was made at the time of his conviction or sentencing. Since this proceeding does not implicate the final judgment on his sex offense conviction, neither we nor the trial court have the authority to order a new sentencing proceeding at which discretionary registration could be ordered.
The superior court concluded that defendant had not met the requirements for a writ of error coram nobis, and it summarily denied his petition. Defendant filed a timely notice of appeal.
II. Discussion
Defendant concedes that his petition did not entitle him to coram nobis relief. He claims that the superior court erred in failing to see beyond his "mislabeling" of his petition and treat it as a petition for a writ of mandate.
A. Appealability
A line of Court of Appeal cases declares that the denial of a coram nobis petition is not appealable if the petition failed to state a prima facie case. "Denial of a defendants request for coram nobis relief is appealable [citation] unless the petition failed to state a prima facie case for relief [citation] or the petition merely duplicated issues which had or could have been resolved in other proceedings." (People v. Gallardo (2000) 77 Cal.App.4th 971, 982 (Gallardo) [dismissing appeal from denial of coram nobis petition]; see also People v. Dubon (2001) 90 Cal.App.4th 944, 950 [stating rule but not applying it].) The parties do not challenge the validity of this line of cases.
We express no opinion on the validity of this line of cases.
Defendant concedes that his coram nobis petition did not state a prima facie case for coram nobis relief, but he contends that his petition was really a mandate petition in disguise. "The label given a petition, action or other pleading is not determinative; rather, the true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading." (Escamilla v. California Dept. of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 511.) As the denial of a mandate petition is appealable (Bettencourt v. City and County of San Francisco (2007) 146 Cal.App.4th 1090, 1097-1098), we will proceed to consider the merits of defendants contention.
B. Potential For Treatment As Mandate Petition
Defendants appointed appellate counsel argues that the superior court erred in failing to treat his coram nobis petition as a mandate petition. The Attorney General concedes that a mandate petition is the appropriate means to utilize in seeking the relief that defendant requested in his coram nobis petition, but the Attorney General asserts that the superior court did not err in failing to treat defendants petition as one seeking a writ of mandate.
The Attorney General asks us to dismiss the appeal "without prejudice" to defendant filing a proper mandate petition. There is no need to declare that our disposition of this appeal is "without prejudice," as the substantive merits of defendants contentions have not been addressed either by the superior court or this court. The only relevance that the with/without prejudice distinction could have here is with respect to issue preclusion. The fact that a petitioner raised an issue in a petition that was summarily denied without consideration of the merits does not preclude the petitioner from filing a new petition raising that same issue. (Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 181 [collateral estoppel applies only where issue was resolved on the merits]; In re Clark (1993) 5 Cal.4th 750, 773 [denial of habeas petition is not res judicata].) There is no need for us to specify the obvious.
A mistitled pleading may be treated as a mandate petition if it alleges facts entitling the petitioner to relief. (Boren v. State Personnel Board (1951) 37 Cal.2d 634, 638 ["it is unimportant that plaintiffs pleading was not in form a petition for mandamus or certiorari"].) However, a petition may properly be denied if it fails to allege facts entitling the petitioner to the relief sought.
"A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . ." (Code Civ. Proc., § 1085, subd. (a).)
Defendants petition adequately established that his 1984 conviction could not, under Hofsheier, provide a valid basis for mandatory sex offender registration. However, defendants petition was substantively deficient because it did not allege that he had never been convicted of any offense that could provide a valid basis for mandatory sex offender registration. The relief he sought, compelling the Department of Justice to remove him from the sex offender registry and to desist from requiring him to register, could only be obtained if defendant could establish that he had no sex offense convictions that could provide a valid basis for mandatory registration. Defendants petition made no allegations regarding the existence or nonexistence of other sex offense convictions. Due to the absence of such allegations, defendants petition did not allege facts entitling him to relief and could not be treated as a mandate petition.
See footnote 1.
Defendants petition was also flawed in other respects. A mandate petition must be verified (Code Civ. Proc., § 1086), and it must be served on the respondent and any real parties in interest. (Code Civ. Proc., §§ 1088.5, 1107.) Defendants petition was unverified, and he submitted no proof of service of the petition on the Department of Justice or any other respondent or real party in interest.
Had defendant filed a verified petition in which he alleged that he had no sex offense convictions upon which mandatory sex offender registration could validly be premised, and he had served his petition on the Department of Justice, the Department of Justice would have had the opportunity to contest his allegations by filing a return. Because he made no such allegations in his petition and did not serve the Department of Justice with his petition, the truth of the missing allegation has not yet been determined and his entitlement to the relief that he seeks remains uncertain.
We reject defendants appellate counsels suggestion that an amendment of the 1984 abstract of judgment would have afforded defendant any of the relief he sought. The abstract of defendants 1984 conviction does not contain any registration requirement. The mandatory requirement to register under Penal Code section 290 is not a part of a judgment of conviction; it is a statutory requirement that applies to any defendant convicted of any registrable offense. On the face of Penal Code section 290, defendants 1984 conviction requires him to register as a sex offender. Hofsheier found this requirement unconstitutional. Hence, as a matter of law, defendants 1984 conviction does not support mandatory registration under Penal Code section 290. No change in the abstract of judgment is necessary to this legal conclusion, and an amendment of the abstract cannot afford defendant any of the relief he seeks.
That is not to say that defendant has no other legal means at his disposal to attempt to obtain relief. Defendant has the option of filing a civil action against the Department of Justice seeking declaratory relief. If he could establish that he has never been convicted of any registrable offense, he could obtain a declaratory judgment to that effect. Even if he could only establish that his 1984 conviction does not require him to register as a sex offender, a declaratory judgment to that effect may be sufficient to convince the Department of Justice to remove him from its sex offender registry if it concludes that he has no other registrable offenses.
III. Disposition
The superior courts order is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
McAdams, J.