People v. McClellan, No. S028225

• Court: United States State Supreme Court (California)
• Writing for the Court: GEORGE; LUCAS; MOSK; KENNARD
• Citation: 6 Cal.4th 367,24 Cal.Rptr.2d 739,862 P.2d 739
• Parties: , 862 P.2d 739 The PEOPLE, Plaintiff and Respondent, v. Gregory McCLELLAN, Defendant and Appellant.
• Decision Date: 02 December 1993
• Docket Number: No. S028225

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24 Cal.Rptr.2d 739 6 Cal.4th 367, 862 P.2d 739 The PEOPLE, Plaintiff and Respondent,
v.
Gregory McCLELLAN, Defendant and Appellant. No. S028225. Supreme Court of California,
In Bank. Dec. 2, 1993.
Rehearing Denied Jan. 20, 1994.

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[6 Cal.4th 369] [862 P.2d 740] Florence V. Hoffman, Sacramento, under appointment by the Supreme Court, and Thomas W. Condit, Foresthill, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Edgar A. Kerry, Rosendo Pena, Jr., and Louis M. Vasquez, Deputy Attys. Gen., for plaintiff and respondent.

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[862 P.2d 741] GEORGE, Justice.

This case presents a question closely related to the issue involved in In re Moser, 6 Cal.4th 342, 24 Cal.Rptr.2d 723, 862 P.2d 723 (1993). [6 Cal.4th 370] In Moser, a criminal defendant who, pursuant to a plea agreement, pleaded guilty to second degree murder, sought to have his conviction set aside on habeas corpus on the ground that the trial court, in advising him of the direct consequences of his proposed plea, erroneously advised him concerning the length of his potential term of parole. In the present case, a defendant who, pursuant to a plea agreement, pleaded guilty to assault with intent to commit rape, seeks to have his guilty plea set aside on appeal on the ground that the trial court, in advising him prior to the entry of the plea, failed to inform him that upon conviction of this offense he would be required to register as a sex offender pursuant to Penal Code section 290. ¹

As we explained in Moser, "a defendant who has pleaded guilty after receiving inadequate or erroneous advice from the trial court with regard to the potential consequences of a plea generally is entitled to obtain relief only by establishing that he or she was prejudiced by the erroneous advice, i.e., by establishing ... that but for the trial court's erroneous advice ..., the defendant would not have entered the guilty plea." (Moser, supra, at p. 724 of 24 Cal.Rptr.2d, p. 724 of 862 P.2d.) In the present case, because the record on appeal fails to establish that defendant would not have entered his guilty plea had he been advised of the mandatory sex offender registration requirement, and also fails to establish that imposition of the registration requirement violates the terms of defendant's plea agreement, we conclude that the Court of Appeal erred in holding that defendant was entitled to relief, and therefore reverse the judgment of the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 12, 1990, Bakersfield police officers responded to a request for assistance concerning an injured minor, Donna T., who was 16 years of age. The police subsequently learned that the minor had been attacked in the bathroom of a friend's residence, that a man of defendant's description had been observed in the vicinity of the crime, and that defendant's fingerprints were found at the scene.

In July 1990, police officers contacted defendant at the Kern County jail, where he was in custody following his arrest on unrelated charges. He was placed under arrest in connection with the assault on Donna T., and subsequently was charged by information as follows: count I--assault with intent to commit rape (§§ 220, 261, subd. (a)(2)); count II--attempted rape (§§ 261, subd. (a)(2), 664) with the intentional infliction of great bodily injury (§ 1203.075); count III--burglary (§§ 459, 460); and count IV--battery resulting in serious bodily injury (§ 243, subd. (d)). The information [6 Cal.4th 371] also alleged that defendant previously had been convicted of a serious felony (§ 667, subd. (a)), had served a prior prison term (§ 667.5, subd. (b)), and (as to counts I, II, and III) had inflicted great bodily injury (§ 12022.7).

Following the preliminary hearing, defendant was held to answer on the above charges, thereafter entering a plea of not guilty and denying the additional allegations.

In September 1990, defendant withdrew his plea of not guilty and entered a plea of guilty to count I, assault with intent to commit rape, also admitting the allegations of intentional infliction of great bodily injury, prior serious felony conviction, and prior service of a prison term. Defendant's guilty plea specifically was conditioned upon dismissal of the attempted rape, burglary, and battery charges and imposition of a state prison sentence not to exceed thirteen years (based upon a middle term sentence of four years for the assault with intent to commit rape (§ 220), a consecutive three-year enhancement for the great bodily injury allegation (§ 12022.7), a consecutive

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[862 P.2d 742] five-year enhancement for the prior serious felony allegation (§ 667, subd. (a)), and a consecutive one-year enhancement for the prior prison term allegation (§ 667.5, subd. (b)). ²

Because it was conditioned upon a sentence not to exceed 13 years and dismissal of the attempted rape, burglary, and battery charges, the plea offered substantial benefits to defendant.

Prior to accepting defendant's guilty plea, the trial court fully and accurately advised defendant of his constitutional rights. The court also accurately advised defendant as to the length of the parole term he would face [6 Cal.4th 372] following his release from prison, but failed, however, to advise defendant that his plea of guilty to the offense of assault with intent to commit rape would require that he register as a sex offender pursuant to section 290. ³

The trial court inquired whether defendant's plea was freely and voluntarily made and whether there was a factual basis for the plea pursuant to section 1192.5 (but improperly failed to advise defendant of his right to withdraw the plea in the event the trial court at the time of sentencing withdrew its approval of the terms of the plea agreement). (§ 1192.5.) ⁴ The court also inquired of defendant whether anyone had promised him anything other than the stated terms of the plea agreement, to which defendant responded in the negative.

Upon the trial court's acceptance of the plea, the People, pursuant to the terms of the plea agreement, moved to dismiss the attempted rape, burglary, and battery charges, conditioned upon the plea remaining in effect.

In October 1990, the probation officer filed her report recommending that probation be denied, that defendant be sentenced to a prison term totaling 15 years (including the 6-year upper term for the assault, plus enhancements), and that defendant be required to register as a sex offender pursuant to section 290.

At the sentencing hearing conducted 11 days later, the trial court, having reviewed

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[862 P.2d 743] the probation officer's report and defendant's prior criminal record, observed that "[t]he [sentencing] choice ... in this case ... is between the [four-year] mid[dle] term (described at the change of plea hearing) and the [six-year] upper term" (recommended by the probation officer) for defendant's assault with intent to commit rape. "The low term is [6 Cal.4th 373] not a viable alternative based on the facts and circumstances of this case as well as the circumstances obviously in aggravation that have been cited.... [p] The Court feels that under the circumstances, however, that the plea bargain is appropriate and the middle term with the enhancements for the prior convictions is an appropriate sentence in that regard. [p] And that's what the Court is going to do."

Prior to imposing sentence, the trial court invited defense counsel to comment. Although defense counsel raised specific challenges to other aspects of the probation officer's report, she did not challenge the recommendation set forth in the probation officer's report that defendant be required to register as a sex offender. After sentencing defendant to a prison term totaling 13 years, the trial court declared, "The defendant is also instructed to register as required under the provisions of Section 290 of the Penal Code." Defendant did not interpose an objection to the registration requirement, nor did he request permission to withdraw his plea of guilty in the event the registration requirement were to be imposed.

Defendant filed a timely notice of appeal in propria persona, citing numerous grounds pertaining to his initial detention and arrest, and again failing to challenge the registration requirement imposed at sentencing. ⁵ Six months after filing his notice of appeal, defendant filed in the Court of Appeal an "Application to Amend Notice of Appeal" which added, as a basis for the appeal, the trial court's imposition of the sex offender registration requirement. In this amended notice, defendant asserted that, had he been advised of the registration requirement, he would not have entered his plea of guilty. The Court of Appeal, in granting the application to amend the notice of appeal, cited rule 41(c) of the California Rules of Court ("... Failure of the adverse party to serve and file written opposition ... may be deemed a consent to the granting of [the] motion."). In his briefing in the Court of Appeal, defendant contended that the judgment should be reversed because the trial court failed to advise him at the change of plea hearing that registration as a sex offender was a direct consequence of his guilty plea. The People argued in response that the trial court's error was harmless.

Characterizing the trial court's error as a "violation of a plea bargain," the Court of Appeal distinguished our decision in People v. Walker (1991) 54 [6 Cal.4th 374] Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, holding that because the registration requirement does not lend itself to a remedy of substantial specific performance as was fashioned with regard to the challenged restitution fine in Walker, the defendant in the present case must be given the opportunity to withdraw his plea. The...