The court must inform the defendant prior to plea of the direct penal consequences of the plea.  When challenging a conviction for lack of advice concerning the consequences of the plea, it is somewhat more difficult to sustain the defense burden of proof because a showing of prejudice is required. 

 

            To prevail, it is necessary to establish:

 

(a) the court failed to advise the defendant of the direct penal consequences of the plea,

 

(b) the client was in fact unaware of these consequences, and

 

(c) the client would have refused to enter the plea if s/he had been properly advised of these consequences.

 

            The California courts have held that the failure to inform a defendant of the direct consequences of the plea is a judicially-declared rule of criminal procedure, not rising to the level of constitutional magnitude.[360]  As a result, any error regarding the direct consequences is subject to a harmless error analysis in state court.  Relief will not be granted unless the petitioner demonstrates a reasonable probability that s/he would have entered a different plea if properly advised.[361]

 

            The defendant must be informed of the following direct consequences:

 

(a) The maximum possible penalty that may be imposed as a result of the plea;[362]

 

(b) absolute or presumptive probation ineligibility;[363]

 

(c) the maximum period of parole defendant might have to serve after completion of any prison term imposed;[364]

 

(d) any mandatory requirement of registration, e.g., as a sex or narcotics offender;[365]

 

(e) if the defendant is not a U.S. citizen, the fact that a conviction may result in deportation, exclusion, or denial of naturalization.  Penal Code § x1016.5.  This statute applies to all convictions occurring after Jan. 1, 1978.  The record must show advisement of this right, or the conviction must be vacated.

 

(f)  Mandatory restitution requirements, although a violation of this right may not always be held prejudicial;[366]

 

The court is not required to advise defendants regarding the collateral consequences that do not automatically flow from the conviction.  Thus, the court need not explain the availability of good time or work-time credits as a direct consequence of plea.[367]  In addition, the trial court need not inform the defendant that it counsel is waived, a viable defense might be overlooked, or that the defendant will lose the opportunity to obtain an independent opinion on whether it is wise to plead guilty.[368]

[360] Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 310; In re Yurko (1974) 10 Cal.3d 857.

[361] People v. McMillion (1992) 2 Cal.App.4th 1363.  This showing of prejudice requires evidence that defendant would not have entered the plea if s/he had been informed of the consequences that were omitted.  In re Ronald E. (1977) 19 Cal.3d 315, 137 Cal.Rptr. 781.  In the immigration context, this might include statements that the defendant would not have entered a guilty plea, or would instead have sought a non-deportable result, a sentence of less than one year, or a plea to an alternative offense that does not exhibit moral turpitude, and the like.  See K. Brady § 8.28.

[362] Marvel v. United States, 380 U.S. 262 (1965); United States v. Roberts, 5 F.3d 365 (9th Cir. 1993); Chapin v. United States, 341 F.2d 900 (10th Cir. 1965); cf. Lane v. Williams, 455 U.S. 624, 630 and n.9 (1982)(reserving the question whether and under what circumstances a failure to inform a defendant of a mandatory parole term will invalidate a guilty plea); Hill v. Lockhart, 106 S.Ct. 366, 369 (1985)(dictum that failure to inform a defendant that his or her eligibility for parole is restricted because of a prior conviction would not invalidate a guilty plea); In re Birch (1973) 10 Cal.3d 314.

[363] People v. Caban (1983) 148 Cal.App.3d 706.

[364] In re Moser (1993) 4 Cal.4th 342.

[365] The requirement that certain controlled substances offenders must register under Health and Safety Code § 11590 must be disclosed to the defendant, prior to entry of the plea.  People v. Cotton (1991) 230 Cal.App.3d 1072, 284 Cal.Rptr. 757; People v. Zaidi (2007) 147 Cal.App.4th 1470, 55 Cal.Rptr.3d 566 (denial of petition to withdraw negotiated plea of no contest to misdemeanor lewd conduct in a public place, with sentence and requirement to register as a sex offender, is reversed where 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); cf. People v. Willard (2007) 154 Cal.App.4th 1329, 65 Cal.Rptr.3d 488 (assuming without deciding that the court erred in failing, at plea, to advise the defendant that the sex offender registration requirement was a lifetime requirement, the defendant failed to establish prejudice, i.e., that he would not have entered the plea if he had been properly advised). 

[366]  People v. Collins (2003)  ­­111 Cal.App.4th 726 (no prejudice where court failed to advise defendant, prior to entry of plea, that order of direct restitution would be consequence; defendant was advised that possible $10,000 restitution fine could be assessed).

[367] People v. Barella (1999) 20 Cal.4th 248.

[368] Iowa v. Tovar, 541 U.S. 77 (2004).

Ninth Circuit

POST CON RELIEF " GROUNDS " COUNSEL
United States v. Delgado-Ramos, 635 F.3d 1237 (9th Cir. Apr. 7, 2011) (conviction and sentencing of defendant for attempted entry after deportation, 8 U.S.C. section 1326(a)-(b), is affirmed where failure of district court to inform him of the immigration consequences of his plea during his plea colloquy was not prejudicial error because even where Padilla v. Kentucky has overruled Circuit precedent, the decision does not undercut the theory or reasoning underlying Amador-Lea so as to afford the defendant a remand).

POST CON RELIEF " GROUNDS " COUNSEL
United States v. Delgado-Ramos, 635 F.3d 1237 (9th Cir. Apr. 7, 2011) (conviction and sentencing of defendant for attempted entry after deportation, 8 U.S.C. section 1326(a)-(b), is affirmed where failure of district court to inform him of the immigration consequences of his plea during his plea colloquy was not prejudicial error because even where Padilla v. Kentucky has overruled Circuit precedent, the decision does not undercut the theory or reasoning underlying Amador-Lea so as to afford the defendant a remand).

Other

CAL POST CON " GROUNDS " GUILTY PLEA " WAIVERS " INSUFFICIENT DOCUMENTATION IN CLERK'S MINUTES
Short Answer Cases in both the Boykin-Tahl and 1016.5 lines of jurisprudence suggest that a clerks check marks on a waiver form, standing alone, will not be enough to show that the defendant knowingly and voluntarily waived a right if the adverse consequence is a direct result of the conviction. (See In re Birch (1973) 10 Cal.3d 314 [110 Cal.Rptr. 212]; People v. Dubon (2001) 90 Cal.App.4th 944 [108 Cal.Rptr.2d 914].) Longer Answer A. Boykin-Tahl case law In the Boykin-Tahl context, courts have held that, when the ignominy and duration of the adverse consequences of a conviction make it a particularly harsh sanction, a rubber-stamped notation of a waiver in the clerks docket entry is insufficient to establish that that waiver was knowing, voluntary, and intelligent. (People v. Zaidi (2007) 147 Cal. App.4th 1470, 1482 [55 Cal.Rptr.3d 566].) In the seminal case of In re Birch (1973) 10 Cal.3d 314 [110 Cal.Rptr. 212], the Defendant was convicted of Penal Code section 647, subdivision (a). The reporters transcript of the oral proceedings revealed only that the trial judge advised Birch of the charge against him, asked how he pled, and, upon Birchs response of guilty, suspended the imposition of sentence upon condition that Birch serve five days in jail. (Id. at p. 317.) The clerks docket entry, by contrast, contained hand-checked, rubber-stamped entries which purported to indicate that Birch had expressly waived his right to counsel and various other constitutional rights and that the court had found that the waivers were waived knowingly, intelligently, and understandingly. (Ibid.) The Court found that the docket entry was directly contradicted by the reporters transcript. (Id. at 321.) To avoid uncertainties regarding whether a waiver was tendered, the court admonished that to be adequate docket entries must specifically list the rights of which the defendant is actually advised . . . . No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead . . . . (Id. at 321 [citing In re Smiley (1967) 66 Cal.2d 606, 617 [58 Cal.Rptr. 579]].) Moreover, the court found that the trial court, in addition to advising a defendant of the right to counsel, has the responsibility to determine that an unrepresented defendant understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, [and] the punishments which may be exacted. (Ibid. [citing In re Johnson (1965) 62 Cal.2d 325, 335 [42 Cal.Rptr. 228]; In re Tahl (1969) 1 Cal.3d 122, 132 [81 Cal.Rptr. 577]].) In particular, the court reasoned that, in view of the unusual and onerous nature of the sex registration requirement that follows inexorably from a conviction under section 647, subdivision (a), the trial courts duty surely included an obligation to advise petitioner of this sanction prior to accepting his guilty plea. (Id. at p. 321.) Although the stigma of a short jail sentence should eventually fade, the ignominious badge carried by the convicted sex offender can remain for a lifetime. (Id. at p. 321-322.) Subsequent cases have distinguished Birch as applying only to direct consequences, rather than collateral consequences. In People v. Zaidi, the court reaffirmed the duty to advise regarding registration, noting that it found additional support for our conclusion in case law holding that a restrictive lifelong consequence or obligation is a direct consequence of the plea, and that a court must advise of the lifetime element. (147 Cal.App. at p. 1483.) Accordingly, consequences which are deemed collateral, or temporary, do not carry with them the duty to advise nor the explicit waiver requirements. (See People v. Barella (1999) 20 Cal.4th 261 [84 Cal.Rptr.2d 248] [no duty to inform defendant of the theoretical minimum portion of a sentence that will have to be served in custody]; Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 527 fn. 1 [145 Cal.Rptr. 636] [no requirement that a defendant be advised of the increased minimum sentence he would receive automatically for a later conviction.]. The Court of Appeal in Ganyo v. Municipal Court made clear that the Birch ruling does not extend to all misdemeanor offenses. In that case, the defendant moved to strike a prior conviction on the grounds that she had not been aware that it would subject her to enhanced punishment in a second or subsequent violation. (80 Cal.App.3d at p. 525.) The Court held that docket entries recorded in the clerks handwriting as yes or no answers to specific questions do constitute an express and explicit waiver by the defendant. (Id. at p. 529.) If the answers had been taken down by a court reporter and transcribed or if they had been contained in a signed waiver there could be no question that they would be classified as express and explicit. Thus, it appears the objection really goes to the method of recording the answers rather than the answers themselves and, as we have seen, a docket entry is still an acceptable, though not the most desirable, method of recording such advisements and waivers. We conclude that the record is sufficient to demonstrate an express advisement and waiver of the Tahl-Mills constitutional rights. (Id. at p. 529-530.) The court in Ganyo noted that Mills v. Municipal Court (1973) 10 Cal.3d 288 [110 Cal.Rptr. 329], specifically approved deviations from the Tahl requirements in cases involving misdemeanors, including group advisement of rights and written waivers and entry of written pleas of guilty by defendants who do not appear. Moreover, the court in Mills, as have other cases, implicitly recognized the continuing necessity for and viability of the use of docket entries to record the advisement and waiver. (Ganyo v. Municipal Court, supra, 80 Cal.App.3d at p. 529.) Though the Ganyo ruling is in some tension with that in Birch, the two opinions are best read as standing for the proposition that, when a conviction has direct and lifelong adverse consequences, a docket entry will be an insufficient substitute for a waiver on the record.

CAL POST CON " GROUNDS " PLEA " PLEA INVALID FOR FAILURE TO WARN THAT SEX OFFENDER REGISTRATION REQUIREMENT IS A LIFETIME REQUIREMENT
Obligation to advise of lifetime sex offender registration A trial courts failure to advise about the lifetime sex offender registration requirement is reversible error. People v. McClellan, 6 Cal.4th 367 (1993). A defendant will be entitled to relief based on the trial courts misadvisement only if the defendant raises the objection to the requirement in a timely fashion and establishes prejudice based on the misadvisement. Id. at p. 377; People v. Walker, 54 Cal.3d 1013 (1991); People v. Zaidi, 147 Cal.App.4th 1470 (2007). II. Requirement to advise regarding lifetime sex offender registration a. Lifetime registration advisement The purpose of Penal Code section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. Barrows v. Municipal Court, 1 Cal.3d 821, 825-26 (1970); see also In re Reed, 33 Cal.3d 914, 919; In re Smith, 7 Cal.3d 362, 367 (1972); 3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, 1416-1417, 1678-81. The statute imposes a lifelong requirement of registration and re-registration absent a court order releasing the registrant from the penalties and disabilities of his conviction . . . . Barrows, 1 Cal.3d at 825 (citation and footnotes omitted). A trial courts obligation to advise a defendant about the sex offender Registration requirement dates back to the seminal cases of Bunnell v. Superior Court, 13 Cal.3d 592 (1975), and In re Birch, 10 Cal.3d 314 (1973). Failure to advise of the sex registration requirement is error and violates the trial courts duty to advise the defendant of the direct consequences of a plea. See People v. McClellan, 6 Cal.4th 367 (1993); Bunnell, 13 Cal.3d 592; People v. Zaidi, 147 Cal.App.4th 1470 (2007). A court must not only advise the defendant of the registration requirement, but also must specify that the registration obligation is lifelong. Zaidi, 147 Cal.App.4th at 1481. A court does not satisfy its duty to inform simply by stating that the defendant must register as a sex offender pursuant to section 290. Ibid. The severity of the lifetime requirement warrants no less than a complete and thorough advisement: The reference to an abstract statutory reference (you shall register as a sex offender pursuant to Penal Code section 290) does not inform the defendant of registration's most dire element. Registration is not for a finite period, like a jail incarceration or probation; it will remain a requirement for the remainder of the defendant's life, with all its attendant shame, ignominy, and potential limitation on employment and housing. Given the magnitude of the consequence, advising the defendant of the lifetime requirement of registration will not impose an undue burden on trial courts. Any additional burden is outweighed by the benefit of assuring that the defendant's waiver of his rights when entering a plea is voluntary and intelligent. Id. at 1483-84. Only if a defendant is informed of the full duration of the registration requirement can he or she fully appreciate the gravity of the consequence of the plea, so as to make the plea voluntary and intelligent. Id. at 1482. b. Timeliness and waiver To demonstrate a trial courts advisement error, the defendant must raise an objection to the error in a timely manner, and must prove prejudice. When the error alleged is a failure to advise of the consequence of a plea, the error is waived if not raised by a timely objection at or before sentencing. People v. Walker, 54 Cal.3d 1013, 1023 (1991). In People v. McClellan, the Supreme Court found that the defendant had waived his claim of error by failing at the sentencing hearing to interpose a timely objection to the registration requirement. 6 Cal.4th at 377. In that case, though the plea agreement had not mentioned a sex offender registration requirement, defense counsel was aware of the probation officers report, filed 11 days prior to the sentencing hearing, recommending that defendant be ordered to register as a sex offender. Ibid. The court reasoned that defense counsel, [i]n the context of her objections at the sentencing hearing to other matters contained in the probation officers report, readily could have challenged the registration recommendation. Ibid. Furthermore, the court noted that the defense counsel had missed an opportunity to object to the registration requirement in the sentencing hearing when the trial court formerly imposed the requirement on the defendant. Ibid. The court concluded, therefore, that the defendant had waived any claim of prejudice arising from the trial courts error. Ibid. In contrast, in People v. Zaidi, the court of appeal found that the defendant had not waived his claim of prejudice. 147 Cal.App.4th at 1477. In that case, like McClellan, the plea agreement made no mention of the requirement to register as a sex offender. Though the probation report recommended sex registration and the court imposed it at sentence over the objection of defense counsel, neither the presentence report nor the arguments of counsel mentioned that registration as a sex offender is a lifetime requirement. Ibid. The defendant filed a motion to withdraw the plea three months later, stating that he never knew that he would be required to register as a sex offender and that the requirement was lifelong. Id. at 1479-80. The court therefore held that, unlike Walker, the present case does not involve a trial courts imposition at the sentencing hearing of a sentence at variance with the advice given at the earlier proceeding . . . . Id. at 1487 (quotation marks and citation omitted). Here, defendant was advised at his plea hearing of the possibility of registration, which would depend on the probation department's recommendation in its pre-sentence report. Defense counsel, by objecting at sentencing to imposition of registration, was plainly familiar with the report's recommendation that defendant be required to register. But nothing in the record suggests defendant himself was aware of the lifetime element of registration, nor should he be required to infer this missing information. Ibid. If the lifetime nature of the registration requirement is not mentioned at the plea or sentencing hearing, therefore, a defendant will not be deemed to have waived the claim of error. c. Prejudice In addition to proving timeliness, a defendant asserting an error in the trial courts advisement must also establish prejudice. See People v. Walker, 54 Cal.3d at 1022-23. [A] defendant (even on direct appeal) is entitled to relief based upon a trial court's misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that it is reasonably probable that the defendant would not have entered the plea of guilty had the trial court given a proper advisement. In re Moser, 6 Cal.4th 342, 352 (1993) (quoting Walker, 54 Cal.3d at 1022-23). In McClellan, the court found that the defendant had failed to establish prejudice. The court emphasized that McClellans amended notice of appeal contained only an assertion by defendant that, but for the trial courts omission, he would not have pleaded guilty. 6 Cal.4th at 378. However, [An] extrajudicial assertion is not a proper component of the record on appeal. Because the record of the trial court proceedings contains no evidence (nor even an assertion) concerning the baring of a registration requirement upon defendants decision to plead guilty, the prosecution never has had an opportunity to contest the assertion made by defendant on appeal, and the trial court had no occasion to pass upon the veracity of defendants present claim. Ibid. Thus, the court held that there was nothing in the record on appeal to support McClellans claim of prejudice. McClellan, 6 Cal.4th at p. 378. Unlike McClellan, the court of appeal in Zaidi found that the record contained sufficient evidence of prejudice from the failure to advise that registration was a lifetime requirement. 147 Cal.App.4th at 1477. The court distinguished its case from McClellan, noting that McClellan did not raise the issue of registration at all until his amended notice of appeal. Id. at 1488. In contrast, Zaidi petitioned to withdraw his plea based on a failure to advise of the lifetime requirement [w]ithin weeks of sentencing. Id. at 1488. Moreover, he supported his petition with a declaration that, while he was aware that he might have to register as a consequence of his plea, he understood that the length of the registration was concurrent with the period of probation. 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 1488-89. The court concluded that [o]n the record before us, there is no evidence to rebut defendant's assertion that he understood that his registration requirement would be only for the duration of his probation. Id. at 1489. The Zaidi court looked to the totality of the circumstances to establish prejudice: In 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. (See People v. Harvey (1984) 151 Cal.App.3d 660, 667, 198 Cal.Rptr. 858.) Id. at 1490. Reading the prejudice holdings in McClellan and Zaidi together, it appears that a defendants own uncontradicted declaration that he would not have pleaded guilty had he been properly advised, is sufficient to establish prejudice, while a bare assertion within a notice of appeal will be insufficient.