Filed 8/27/18 P. v. Balmaceda CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A146872

v. (Contra Costa County

Super. Ct. No. 51403666)

MARTIN BALMACEDA,

Defendant and Appellant.

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Martin Balmaceda appeals from a judgment of conviction and sentence imposed after he pled guilty to offenses requiring registration as a sex offender. Balmaceda contends the trial court prejudicially erred by failing to advise him, before accepting his plea, of the lifetime nature of the registration requirement.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged Balmaceda with 29 sex offenses (§§ 288.7, subds. (a), (b), 288, subds. (a), (b)).[1] In October 2015, during jury selection, Balmaceda plead guilty to two counts of forcible lewd acts upon a child under age 14 (§ 288, subd. (b)(1)) and four counts of lewd acts upon a child under age 14 (§ 288, subd. (a)) in exchange for a 28-year prison term. Lifetime sex offender registration for these offenses is mandatory. (See § 290, subd. (c).) A felony advisement of rights, waiver and plea form (plea form) contained the terms of the plea. Balmaceda signed the plea form and separately initialed the section which stated: “I understand that conviction of the charge(s) will subject me to registration requirements.” Balmaceda’s attorney signed the section of the form stating: “I have explained each of the defendant’s rights to the defendant and answered all of the defendant’s questions with regard to this plea. I have discussed the . . . consequences of this plea.”

At the October 2015 change of plea hearing, defense counsel described the negotiated plea. The court told Balmaceda, “[i]t’s most important that you understand the terms of the agreement that [defense counsel] just described. [¶] Did you understand what she just said?” Balmaceda asked a question about the length of the sentence and the court gave Balmaceda time to consult with counsel. When defense counsel indicated Balmaceda was ready to proceed, the court asked Balmaceda whether he had reviewed the plea form with his attorney, and whether he read and understood the form. Balmaceda answered, “Yes.” The court asked Balmaceda whether he had questions or needed additional time to understand his rights or the consequences of the plea. After an unreported discussion, Balmaceda responded, “No.”

When the court asked for his plea to the first count, Balmaceda asked if he could plead “[n]o contest[.]” Defense counsel explained that part of the agreement was Balmaceda must plead guilty. The court gave Balmaceda time to talk with counsel, and further discussion was held off the record. Balmaceda then pled guilty to each of the six counts. The court determined the pleas were “knowingly, voluntary, and intelligent and made with an understanding of the consequences of the plea.”

At the sentencing hearing held four days later, the court stated it intended to follow the plea agreement and impose a 28-year sentence. Defense counsel did not raise any issues regarding sentencing; Balmaceda declined an invitation to address the court. The court sentenced Balmaceda to an aggregate term of 28 years in state prison and ordered him to “register as a sex offender pursuant to . . . Section 290.” The court dismissed the remaining charges.

Balmaceda filed a notice of appeal in November 2015, purporting to challenge the sentence and the validity of the plea. Attached to the notice of appeal was a request for a certificate of probable cause. Neither the notice of appeal nor request for probable cause certificate referred to the failure to advise Balmaceda of the lifetime nature of the registration requirement. The trial court granted the request for a probable cause certificate.[2]

DISCUSSION

Balmaceda argues his conviction must be reversed because the court did not advise him of the lifetime nature of the registration requirement. A trial court must advise a defendant of the direct consequences of a guilty or no contest plea before it takes the plea. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481 (Zaidi).) “This obligation includes the duty to advise of the requirement to register as a sex offender upon conviction of a statutorily enumerated offense,” and “that the registration requirement will be for the duration of the defendant’s life.” (Ibid.; Harris v. Appellate Division of Superior Court (2017) 14 Cal.App.5th 142, 149, fn. 4.)[3] Failure to advise the defendant that “registration is a lifetime requirement” is error. (Zaidi, at p. 1481.)

Here, the court erred by failing to advise Balmaceda that by pleading guilty he would be subject to lifetime sex offender registration. (Zaidi, supra, 147 Cal.App.4th at p. 1481.) At sentencing, the court ordered Balmaceda to “register as a sex offender pursuant to . . . Section 290.” An “abstract statutory reference” does not “inform the defendant of registration’s most dire element.” (Zaidi, at p. 1484.) This error compels reversal, however, only if Balmaceda establishes the error was prejudicial, i.e., that he “ ‘ “would not have entered the plea of guilty had the trial court given a proper advisement.” ’ ” (Id., at p. 1488.)

The record before us fails to establish prejudice. (McClellan, supra, 6 Cal.4th at p. 378.) Sex offender registration—“a statutorily mandated element of punishment for the underlying offense[s]”—was part of the negotiated plea, creating an inference that Balmaceda was advised he was subject to at least some period of registration. (Id. at p. 380.) In addition, Balmaceda was represented by counsel, who is presumed to have advised him about the possible consequences of the plea, including lifetime sex offender registration. (See Strickland v. Washington (1984) 466 U.S. 668, 689; In re Birch, supra, 10 Cal.3d at p. 322.) Counsel signed the plea form stating: “I have explained each of the defendant’s rights to the defendant and answered all of the defendant’s questions with regard to this plea . . . . I have discussed the . . . consequences of this plea.” In addition, Balmaceda faced a lengthy prison sentence if convicted of the 29 charges; the plea agreement afforded him a significantly reduced sentence. There is nothing in the record suggesting Balmaceda would have turned down this highly favorable plea bargain had he been told by the court that the registration requirement would last a lifetime.

At no point at the change of plea hearing, sentencing hearing, or in his notice of appeal and request for a certificate of probable cause did Balmaceda assert he was uninformed of the lifetime nature of the registration requirement or that he would not have entered the plea had he known the length of the registration requirement. To the contrary, Balmaceda’s comments at the change of plea hearing suggest he was concerned with the length of his prison sentence and whether he could plead no contest, not with sex offender registration. Moreover, Balmaceda’s “failure to object at the sentencing hearing suggests that he did not consider the registration requirement significant in the context of his plea agreement.” (McClellan, supra, 6 Cal.4th at p. 378.) Balmaceda’s request for a certificate of probable cause alleged he felt pressured to accept the plea, not that he failed to receive the proper advisements regarding the consequences of that plea. The evidence in the appellate record does not establish prejudice.

We are not persuaded by Balmaceda’s attempt to analogize this case to Zaidi. In that case, the defendant pled guilty to a misdemeanor offense for which sex offender registration was discretionary, and the probation forms and the trial court’s sentence implied registration would last the length of probation. (Zaidi, supra, 147 Cal.App.4th at p. 1490.) At the sentencing hearing, when the court imposed sex offender registration, defense counsel objected and argued against the registration requirement. (Id. at p. 1477.) Within weeks of sentencing, the defendant petitioned to withdraw his plea based on what he characterized as an incomplete advisement, i.e., failure to advise of the lifetime requirement. The defendant supported the petition to withdraw the plea with a declaration stating that had he known registration was for life, he would never have entered the plea and would have insisted on going to trial. (Id. at pp. 1479−1480.) The trial court denied the petition and the defendant appealed. (Id. at p. 1480.)

We concluded “[i]n light of (1) defendant’s prompt effort to withdraw his plea on the grounds of lack of advisement, accompanied by his specific declaration that he would not have entered a plea had he known of the lifetime registration requirement; (2) the format of the oral sentencing and written probation forms that misleadingly suggested that the registration requirement was for the duration of probation only; and (3) the absence of evidence that defendant was made aware that registration would be for life, we conclude that defendant met his burden of establishing prejudice from the court’s failure to advise that a consequence of his no contest plea would be lifetime registration as a sex offender. Under the totality of these circumstances, the denial of his motion to withdraw his plea was an abuse of discretion.” (Zaidi, supra, 147 Cal.App.4th at p. 1490.)

Zaidi is easily distinguishable. Here, Balmaceda pled guilty to felony offenses for which sex offender registration was mandatory. Unlike Zaidi, neither the plea form nor the trial court’s sentence misled Balmaceda into thinking the registration would last for a discrete period of time. At sentencing, Balmaceda did not object to the registration requirement. Nor did he promptly move to withdraw his plea; instead Balmaceda appealed and waited nine months to file a petition for coram nobis. Finally, the defendant in Zaidi appealed from the trial court’s denial of the motion to withdraw the plea. Balmaceda did not appeal from the denial of his coram nobis petition. For these reasons, Zaidi does not assist Balmaceda. Based on the record before us, Balmaceda has not established prejudice. (McClellan, supra, 6 Cal.4th at pp. 374–378.)

DISPOSITION

The judgment is affirmed.

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Jones, P.J.

We concur:

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Simons, J.

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Needham, J.

A146872