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In Re Roger Lynn Douglas

October 27, 2011

IN RE ROGER LYNN DOUGLAS, ON HABEAS CORPUS.


APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. (Super.Ct.No. WHCSS1000095)

The opinion of the court was delivered by: Hollenhorst Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

Reversed.

The People appeal the grant of petition for writ of habeas corpus of Roger Douglas (Defendant) pursuant to Penal Code*fn1 section 1506. The People contend the trial court erred as a matter of law in granting the writ because the petition was untimely, barred by laches, and Defendant was not in actual or constructive custody on the challenged conviction. We agree and reverse.

I. INTRODUCTION

On December 18, 1997, Defendant accepted a plea agreement. He pled no contest to one count of misdemeanor sexual battery. (§ 243.4, subd. (d)(1).) Section 290, subdivision (b), requires anyone convicted under section 243.4 to register as a sex offender. Defendant currently has three cases, from 2008, 2009 and 2010, pending in San Bernardino Superior Court for failing to register as a sex offender.

In 2010, Defendant filed a petition for writ of habeas corpus in the San Bernardino Superior Court, asking that the court either strike the sex offender registration requirement or vacate his 1997 guilty plea. Defendant claims that prior to entering his plea, he was not informed that he was required to register as a sex offender. In September 2010, the trial court found that Defendant was not advised of the registration requirement. The court granted the writ and vacated the 1997 conviction.

The People appeal, contending that because Defendant did not file the petition in a timely manner and was not in actual or constructive custody on the challenged conviction, the petition was procedurally barred and should not have been granted. The People also contend that Defendant did not meet the standard for relief based on ineffective assistance of counsel. Because we find the petition was procedurally barred, we decline to consider the merits of the petition.

We conclude that the trial court erred in issuing the writ, as Defendant failed to pursue an appropriate legal remedy in a timely fashion.

II. FACTS AND PROCEDURAL BACKGROUND

In early December 1997, in San Bernardino County, Defendant was arrested and charged with misdemeanor sexual battery (§ 243.4, subd. (d)(1)) and misdemeanor resisting a peace officer (§ 148, subd. (a)). Defendant was represented by attorney James Siegrist and a plea agreement was arranged. Defendant was to receive 30 days in jail, with credit for 20 days, and 36 months of probation. He testified that prior to entering his plea, he was not advised by his attorney or by the trial court that by pleading no contest and being convicted of the sexual battery charge he would be required to register as a sex offender. Section 290, subdivision (b), requires sex offender registration for anyone convicted of a violation of section 243.4.*fn2

On December 18, 1997, Defendant pled nolo contendere to one count of misdemeanor sexual battery and the resisting a peace officer charge was dismissed. The hearing was not reported, and the minutes contain no reference to sex offender registration but do mention that Defendant understood the charges, the possible penalties, and the specific rights. Neither the preprinted plea bargain agreement nor the preprinted advisement of rights, waiver, and plea form contains any reference to sex offender registration.

On December 19, 1997, the day after his plea, Defendant signed a form advising him that he had to register as a sex offender. Prior to being released from jail, Defendant was also orally advised by a deputy that he had to register as a sex offender. Defendant claims he could not read the advisal form without his glasses, did not know what it was when he signed it, and did not believe the deputy's verbal ...


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