ORIGINAL PROCEEDINGS. Writ of Habeas Corpus. Petition denied and order to show case discharged. Superior Court of Placer County, Mark S. Curry, Judge. (Super. Ct. No. 62077364).
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PUBLICATION
Petitioner Warren Granard Watford petitions for a writ of habeas corpus directing the Placer County Superior Court to vacate its judgment of conviction for failing to register as a sex offender because the predicate sex offense has been vacated and will not be retried. Petitioner asserts the predicate offense is now void ab initio, and thus he was never required to register and cannot be held for failing to register.
We disagree and deny the petition.
In 1986, petitioner was convicted in Suffolk County, Massachusetts, of a sex offense involving a minor.
Nearly 22 years later, on February 6, 2008, petitioner was arrested in Lincoln, California, and charged with failing to register as a sex offender as required under Penal Code sections 290 and 290.005.*fn1 The evidence at trial indicated petitioner had arrived in California from Massachusetts in December 2007, and he had not registered with local authorities since his arrival.
In April 2008, a Placer County jury convicted petitioner of failing to register as a sex offender. The trial court also found true an allegation that petitioner was convicted of armed robbery in Massachusetts in 1992, a serious felony for purposes of the "Three Strikes" law. The court sentenced defendant to the low prison term of 16 months, doubled under the Three Strikes Law for a total of 32 months. We affirmed this judgment on appeal. (People v. Watford (Dec. 17, 2009, C060123) [nonpub. opn.].)*fn2
In September 2008, following his Placer County conviction, petitioner filed a motion in the Massachusetts court to withdraw his plea to the 1986 sex offense conviction. He claimed his plea in that action had not been voluntary and was unconstitutional. In January 2009, the Massachusetts court granted his motion and permitted him to withdraw his plea.
In May 2009, the Massachusetts court dismissed the 1986 charges against petitioner after the district attorney declined to prosecute petitioner again.
Petitioner now seeks a writ of habeas corpus from this court. He claims that as a result of the withdrawal of his 1986 plea and the dismissal of the Massachusetts complaint in 2009, the qualifying sex offense for his 2008 Placer County conviction for failing to register is not a conviction and is void ab initio. He asserts that because his status as a sex offender has been eliminated and with it the requirement to register, he is being unlawfully incarcerated for failing to register.
"'A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.]' [Citation.]" (In re Cudjo (1999) 20 Cal.4th 673, 687.)
Petitioner has not shown that his 2008 conviction in Placer County is invalid. On the date of his arrest, he was required to have registered under sections 290 and 290.005, and he had failed to do so. The fact that the predicate offense was later dismissed did not render the 2008 conviction invalid. At the time of his arrest, he was in violation of the law, and he is incarcerated for that violation.
Although no reported case authority appears directly on point, we find dispositive support in decisions upholding analogous judgments against a convicted felon for unlawful firearm possession even though the underlying felony conviction is subject to collateral attack. In Lewis v. United States (1980) 445 U.S. 55 [63 L.Ed.2d 198] (Lewis), the United States Supreme Court ruled that the constitutional invalidity of an accused's underlying felony conviction was no defense to a conviction under federal law for being a felon unlawfully possessing a firearm.
In that case, shortly before trial on the possession charge, the trial court learned the defendant had not been represented by counsel on the underlying conviction some 16 years earlier. Defendant claimed that under the rule of Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799], a violation of the federal possession statute could not be predicated on an earlier ...