People v. Williams CA2/3

Filed 8/11/14 P. v. Williams CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B241987

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA377243)
v.

BRIAND WILLIAMS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Clifford L. Klein, Judge. Affirmed.

Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb, Janet E.
Neeley, Joseph P. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and
Respondent.
 INTRODUCTION
After a court trial, defendant and appellant Briand Williams was found guilty of
failing to register as a sex offender (Pen. Code, § 290.012).1 He contends the judgment
must be reversed because (1) it is based on document that should have been excluded as
hearsay and under Crawford v. Washington (2004) 541 U.S. 36 (Crawford); (2) the
judgment is predicated on an unlawful plea in the underlying sex offense case; (3) there is
insufficient evidence to show he violated section 290.012; and (4) the 14-year delay in
prosecuting him violated his due process rights. We reject these contentions and affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, defendant was charged with six counts of violating section 288,
subdivision (c),2 in Los Angeles County Superior Court case No. BA130843 (the 288(c)
case).
John Helbling is a paralegal in the Los Angeles County District Attorney’s Office.
His job for 18 years was to “allege[] and order[]” documents that proved prior
convictions. He assembled People’s exhibit 2, consisting of, among other things: (1) a
certified fingerprint card date-stamped October 29, 1995 and stating a charge of “288(c)”
against Briand Bernard Williams; and (2) a certified “Disposition of Arrest and Court
Action” form (the disposition) in case No. BA130843 against “Williams, Briand.”3

1
All further undesignated statutory references are to the Penal Code.
2
Section 288, subdivision (c), prohibits lewd or lascivious acts with a child 14 or 15
years old, where the accused is at least 10 years older than the child.
3
The remaining documents comprising People’s exhibit 2 are: (3) a fingerprint
card stating a charge of “211PC”; (4) “Disposition of Arrest and Court Action” form for
the section 211 conviction; (5) a “Subsequent Action Disposition Information” form
stating that defendant’s probation for the robbery was extended three years; (6) a
“Subsequent Action Disposition Information” form concerning the robbery; (7) a
fingerprint card showing a charge for “118(A) PC PERJURY”; (8) a “Disposition of
Arrest and Court Action” form showing defendant’s 1998 sentence for violating

2
 Alyson Lunetta, assistant manager for the California Department of Justice’s
(DOJ) sex offender tracking program, certifies documents in section 290 violation cases.
She prepared People’s exhibit 1, which shows that defendant signed documents dated
January 3, 2002, April 11, 2003, December 30, 2003, and July 14, 2009 stating he was
notified of the sex offender registration requirements.4 These forms are given to an
inmate before release from custody. According to documents from the California Sex
and Arson Registry, defendant never registered as a sex offender.
Deputy Ralph Olivas is the records deputy at the Inmate Reception Center. He
handles detentions, releases, and civil lawsuits. On July 14, 2009, Deputy Olivas gave a
sex offender registration requirement form to defendant, who initialed and signed it in his
presence.
Otis Graham lives with defendant at 2403 West 75th Street in Los Angeles, and
they were living at that address in October 2009.
Wu Liang Huang, a fingerprint identification expert, examined the fingerprint
cards in People’s exhibit 2 (the section 288, subdivision (c) conviction) and People’s
exhibit 1 (the notification), and they match defendant’s fingerprints.
An amended information dated February 8, 2011, alleged, in count 1, that
defendant, on or about October 27, 2009, failed to update his registration annually
(§ 290.012, subd. (a)). The information also alleged that defendant had suffered two
prior serious or violent convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and
had served two prior prison terms (§ 667.5, subd. (b)).
Defendant waived a jury trial. After a court trial, the court found, on March 14,
2011, beyond a reasonable doubt that defendant had failed to register. The court found
not true the prior strike allegations, but found that defendant had served one prior prison
term within the meaning of section 667.5, subdivision (b).

section 118; and (9) a “Subsequent Action Disposition Information” form that is mostly
illegible. All documents were certified.
4
The registration notice states, among other things, that a sex offender must register
within five working days of release from incarceration, placement or commitment.

3
 On October 5, 2012, the trial court sentenced defendant to two years plus one year,
under section 667.5, subdivision (b), for a total of three years in prison.
DISCUSSION
I. The disposition constitutes sufficient evidence defendant had a prior
conviction of a crime that required him to register as a sex offender.
Defendant asserts that there is insufficient evidence he was convicted of a sex
crime requiring him to register under section 290. We disagree.
In assessing the sufficiency of the evidence to support a conviction, “we review
the whole record to determine whether any rational trier of fact could have found the
essential elements of the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008)
43 Cal.4th 327, 357; see also Jackson v. Virginia (1979) 443 U.S. 307.)
Here, defendant’s sufficiency of the evidence contention hinges on the
admissibility of People’s exhibit 2, and, specifically, the certified disposition from the

4
DOJ.5 The disposition states, among other things, defendant’s name (“Williams,
Briand”), date of birth (“10/20/65”), arrest date (“9/26/95”), date of sentence (“7/16/96”),
the charge (“288(c) PC”), and sentence (36 months’ probation). To support admission of
the disposition into evidence, Helbling, a paralegal in the Los Angeles County District
Attorney’s Office, testified that for 18 years he “alleged and ordered” documents that
prove prior convictions, and, for the past three years, he has ordered discovery. To do
these jobs, he attended 16 hours of “seminars, where representatives from California
Department of Corrections and representatives from the Department of Justice” explained
the procedures. He described the disposition as “a form that’s generated by the
Department of Justice. It’s information [that] they get from the courts and it’s just a
summary of what happened on a particular case.”
Defendant correctly asserts that the disposition is hearsay, offered to prove the
truth of the matter asserted; namely, defendant was convicted of section 288, subdivision
(c), in 1996. (Evid. Code, § 1200.) 6 But “[e]vidence of a writing made as a record of an
act, condition, or event is not made inadmissible by the hearsay rule when offered in any
civil or criminal proceeding to prove the act, condition, or event if all of the following
applies: [¶] (a) The writing was made by and within the scope of duty of a public
employee. [¶] (b) The writing was made at or near the time of the act, condition, or
event. [¶] (c) The sources of information and method and time of preparation were such
as to indicate its trustworthiness.” (Evid. Code, § 1280; see also People v. Martinez
(2000) 22 Cal.4th 106, 119-120 (Martinez).) “A trial court has broad discretion in
determining whether a party has established these foundational requirements.”
(Martinez, at p. 120.) A reviewing court may overturn the trial court’s exercise of
discretion “ ‘ “only upon a clear showing of abuse.” ’ [Citations.]” (Ibid.)

5
Unable to locate the entire superior court case file in case No. BA130843, the
prosecution relied primarily on exhibit 2 to prove that defendant was convicted of section
288, subdivision (c).
6
Defense counsel objected to exhibit 2 because it had not been produced to him.
He did not object to it on hearsay grounds.

5
 In Martinez, the prosecution introduced an uncertified computer printout from the
DOJ’s computer system, known as the California Law Enforcement Telecommunications
System (CLETS), to prove that the defendant had served prior prison terms. (Martinez,
supra, 22 Cal.4th at p. 113.) The prosecution argued that the printout was an official
record, and therefore admissible under an exception to the hearsay rule. (Evid. Code,
§ 1280.) To satisfy the official records requirement that the writing was made at or near
the time of the act, condition, or event, Martinez relied on statutes requiring law
enforcement agencies to report criminal proceedings to the DOJ and requiring the DOJ to
provide information on request within certain time limits. (Martinez, at pp. 121-125;
§ 11101 [requiring Attorney General to procure all information regarding persons
convicted of a felony]; § 11105 [requiring the DOJ to maintain state summary criminal
history information]; § 13100 [finding, among other things, that agencies and courts
require speedy access to final disposition information, and that recording, reporting,
storage, analysis, and dissemination of criminal offender record information must be
made more uniform and efficient, and better controlled and coordinated]; § 13151
[requiring courts to furnish a disposition report to the DOJ].) To establish that these
reporting and recording duties were performed, Martinez cited the presumption that an
official duty is regularly performed (Evid. Code, § 664). (Martinez, at p. 125.) As to the
trustworthiness requirement, the court again relied on the statutes, in addition to the
testimony of a deputy sheriff that the defendant, during a conversation with her, did not
deny the accuracy of information consistent with information in the CLETS printout. (Id.
at p. 131.)
Under Martinez, the trial court here did not abuse its broad discretion by admitting
the disposition.7 (Martinez, supra, 22 Cal.4th at p. 120, citing People v. Beeler (1995)
9 Cal.4th 953, 978 [trial court has broad discretion to determine whether foundational
requirements have been met].) First, Helbling, the paralegal from the district attorney’s

7
Because defendant’s trial counsel did not object to the disposition as hearsay, the
trial court did not expressly consider the official records exception to the hearsay rule.

6
office,8 testified that the DOJ generated the disposition based on “information [that] they
get from the courts and it’s just a summary of what happened on a particular case.” This
testimony, along with the statutes cited in Martinez, established that the disposition was
made by and within the scope of duty of a public employee. (Martinez, at pp. 121-125 &
Penal Code sections cited therein.)
According to Martinez, these same statutes can satisfy the next two requirements
of the official records exception: the writing was made at or near the time of the act,
condition, or event and the sources of information and method and time of preparation
were such as to indicate its trustworthiness. (Evid. Code, § 1280, subds. (b) & (c).)
Although Martinez acknowledged that the statutes do not specify when the DOJ is
required to enter criminal information it receives, the court concluded, from its review of
the statutes, that the DOJ “had a statutory duty to record the information detailed in the
CLETS printout ‘within a short period of its receipt from the reporting agency’
[Citation.]” (Martinez, supra, 22 Cal.4th at p. 127.) Under Martinez, we can therefore
presume that the DOJ created the disposition shortly after defendant’s conviction and the
DOJ’s receipt of information concerning that conviction. (Evid. Code, § 664; Martinez,
at p. 127.)
As to the trustworthiness requirement, information in the disposition was
corroborated by other evidence. Here, on his release from jail in July 2009, defendant
signed a “Notice of Sex Offender Registration Requirement.” That certified document9
states, among other things, that his “registrable conviction” was a “288(c)” with a
“7/16/1996” conviction date. Deputy Olivas testified he gave the form to defendant, who

8
Helbling also testified in Martinez.
9
Evidence Code section 1530, subdivision (a) provides in pertinent part that a
“purported copy of a writing in the custody of a public entity, or of an entry in such a
writing, is prima facie evidence of the existence and content of such writing or entry” if,
with respect to writings kept by entities within the United States, the copy purports to be
published by the authority of the nation or state and the copy is certified as a correct copy
by a public employee having legal custody of the writing.

7
initialed and signed it in front of the deputy on July 14, 2009. (See, e.g., Martinez, supra,
22 Cal.4th at p. 131 [deputy testified that she asked the defendant about information
consistent with information in the CLETS printout].) The information in the notice is
consistent with the information in the disposition, thereby indicating the disposition’s
trustworthiness.
We therefore conclude that the disposition was properly admitted. This compels
us to reject defendant’s related contention that his trial counsel provided ineffective
assistance of counsel for failing to object to the disposition as hearsay. A defendant
claiming ineffective assistance of counsel must establish both error and prejudice. (See
generally, Strickland v. Washington (1984) 466 U.S. 668.) Defendant cannot establish
prejudice as a result of any failure to object to the disposition, because it was admissible
under the official records exception. (Cf. People v. Lopez (2005) 129 Cal.App.4th 1508,
1520-1524 [defense counsel’s failure to object to inadmissible evidence impeaching
witnesses was prejudicial error because credibility of witnesses was critical].)
We therefore also reject the ultimate issue defendant raises; namely, that there is
insufficient evidence to show he was convicted of section 288, subdivision (c), a
registrable sex offense. The disposition states that defendant was convicted of “288(c)”
and that he was sentenced to 36 months’ probation on July 16, 1996. The disposition
therefore constitutes sufficient evidence that defendant was convicted of a sex offense.
II. The disposition is not testimonial, and therefore its admission did not violate
the confrontation clause.
Defendant next contends that admitting the disposition form violated his Sixth
Amendment confrontation rights. (Crawford, supra, 541 U.S. at p. 61.) We disagree.10
A criminal defendant has the constitutional right to confront and cross-examine
adverse witnesses. (U.S. Const., 6th Amend.; People v. Lopez (2012) 55 Cal.4th 569,
573, 576.) The Sixth Amendment therefore generally bars admission at trial of a
testimonial out-of-court statement offered for its truth against a criminal defendant,

10
Defendant’s trial counsel did not object to the disposition form under the
confrontation clause.

8
unless the maker of the statement is unavailable to testify and the defendant had a prior
opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 69; Davis v.
Washington (2006) 547 U.S. 813, 821; People v. Livingston (2012) 53 Cal.4th 1145,
1158; Lopez, at pp. 573, 580-581.) Although Crawford limited the confrontation right to
testimonial statements, the court declined to provide a comprehensive definition of
“testimonial.” (Crawford, at p. 68.) It did, however, give examples of testimonial
statements: “(1) plea allocutions showing the existence of a conspiracy; (2) grand jury
testimony; (3) prior trial testimony; (4) ex parte testimony at a preliminary hearing; and
(5) statements taken by police officers in the course of interrogations. [Citation.]”
(People v. Cervantes (2004) 118 Cal.App.4th 162, 172.)
Since Crawford, courts have considered what types of records or documents are
“testimonial.” People v. Taulton (2005) 129 Cal.App.4th 1218, 1224, held that records of
a defendant’s prior convictions (the “969b” packet) are not testimonial, because the test
for determining whether a statement is testimonial is “whether it was obtained for the
purpose of potentially using it in a criminal trial or determining if a criminal charge
should issue.” Because rap sheets document acts and events relating to convictions,
Taulton analogized rap sheets to nontestimonial business records. (Id. at p. 1225.)
Although rap sheets may ultimately be used in criminal proceedings, they are not
prepared for either that purpose or for determining whether criminal charges should issue.
(Ibid.; accord People v. Morris (2008) 166 Cal.App.4th 363, 373 [admitting certified
CLETS rap sheet as proof of prior prison terms does not violate the confrontation
clause].)
Defendant distinguishes Taulton and Morris because they involved “accepted
methods of proving records of prior convictions,” namely, 969b packets and CLETS
printouts. It may not be as common for the prosecution to use DOJ disposition forms to
evidence a prior conviction. But the focus of a Crawford claim is whether the document
at issue is testimonial, that is, whether the documents were prepared for the purpose of
providing evidence in criminal trials or for determining whether criminal charges should
issue. (People v. Taulton, supra, 129 Cal.App.4th at p. 1225.) The disposition was not

9
primarily prepared for that purpose. Its primary purpose “is to permit law enforcement to
track necessary information regarding the arrest, conviction, and sentencing of
individuals and to communicate that information to other law enforcement agencies.”
(People v. Morris, supra, 166 Cal.App.4th at pp. 370-371.) That a disposition may be
used at a criminal trial does not mean it was created primarily for that purpose.
We therefore conclude that the disposition form is nontestimonial; hence, there is
no Crawford or confrontation clause violation.
III. Validity of defendant’s plea in the 288(c) case.
Defendant next contends he was never advised of his duty to register as a sex
offender at his sentencing on the underlying predicate offense, the 288(c) case. He
argues that because of the alleged misadvisement, his conviction in this case is predicated
on an unlawful plea, and the judgment here must be reversed.
Before reaching the ultimate issue, an overview of the procedural history in the
288(c) case is helpful. In 1996, defendant was charged with six counts of violating
section 288, subdivision (c) in case No. BA130843.11 Defendant pled guilty to one count
of violating section 288, subdivision (c). He was sentenced to three years’ probation on
July 16, 1996. The reporter’s transcript from his sentencing hearing is not a part of the
record on appeal.
In February 2011, the amended information in this case was filed, alleging that, on
or about October 27, 2009, defendant failed to update his registration (§ 290.012,
subd. (a)). Defendant filed motions essentially contending that this case should be
dismissed or his plea in the 288(c) case should be dismissed because he was never
advised of the registration requirement. After the court trial was held and he was found
guilty of violating section 290.012, subdivision (a), defendant filed a petition for writ of
habeas corpus in the superior court regarding the alleged misadvisement. The face page
of that petition states it is filed in case No. BA130843 (the 288(c) case) and case

11
The information in the 288(c) case is part of the record on appeal here, although
the prosecution was unable to locate the majority of the superior court file in preparation
for the court trial on defendant’s failure to register as a sex offender.

10
No. BA377243 (the case at issue). The motions and the petition for writ of habeas corpus
were denied.12 As to the motions, the courts found that the motions were not properly
before them. It does not appear that defendant appealed the denial of his petition for writ
of habeas corpus.
The first issue defendant raises concerning the 288(c) case is whether the trial
court had a duty to advise him of the registration requirement. It did have such a duty.
“When a criminal defendant chooses to plead guilty (or, as here, no contest), both the
United States Supreme Court and this court have required that the defendant be advised
on the record that, by pleading, the defendant forfeits the constitutional rights to a jury
trial, to confront and cross-examine the People’s witnesses, and to be free from
compelled self-incrimination. [Citations.] In addition, this court has required, as a
judicially declared rule of state criminal procedure, that a pleading defendant also be
advised of the direct consequences of his plea. [Citations.] If the consequence is only
collateral, no advisement is required.” (People v. Gurule (2002) 28 Cal.4th 557, 633-
634; see also In re Moser (1993) 6 Cal.4th 342, 351; Boykin v. Alabama (1969) 395 U.S.
238; In re Tahl (1969) 1 Cal.3d 122.) The duty to register as a sex offender under section
290 is a direct consequence of a conviction for committing enumerated sex offenses,
including section 288, subdivision (c). (People v. McClellan (1993) 6 Cal.4th 367, 376
(McClellan);13 Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; In re Birch (1973)
10 Cal.3d 314, 322; People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.) 14 Therefore,

12
The habeas corpus petition was filed on June 3, 2011, after the court trial
concluded. It was denied on August 12, 2011, and neither defendant nor his counsel
made an appearance. If there is a reporter’s transcript from that date, it does not appear
to be a part of the record on appeal.
13
In McClellan, defendant pleaded guilty to assault with intent to commit rape.
(6 Cal.4th at p. 371.) He sought to have his plea set aside on appeal because the trial
court failed to advise him, before entry of his plea, that he would be required to register
as a sex offender. (Id. at p. 372.)
14
The People argue that the duty to register as a sex offender is merely a collateral,
not a direct, consequence of a conviction, and therefore the trial court in the 288(c) case

11
the trial court in defendant’s 288(c) case had a duty to advise him he was required to
register as a sex offender.
The next issue therefore is what effect, if any, does the trial court’s alleged failure
to advise defendant of his registration requirements in the 288(c) case have on this case
for defendant’s failure to comply with those requirements? The first problem, however,
is that the record on appeal does not reveal whether the trial court in the 288(c) case
failed to tell defendant he had to register as a sex offender. Neither a reporter’s transcript
from the 1996 sentencing hearing nor a settled statement has been submitted on appeal,
and it does not appear that defendant sought to supplement the record on appeal with
such documents. Other than defendant’s bare assertion he was not advised in 1996 of the
sex offender registration requirement, there is no evidence before us that the trial court in
the 288(c) case failed in its advisement duties.
This leads us to a procedural issue: How should the misadvisement issue been
raised in the trial court below? Defendant filed, in this case No. B377243, various
motions concerning the alleged misadvisement in the 288(c) case.15 Those motions were
denied, because the trial court found they were not properly before it. To the extent
defendant sought, via those oddly titled motions, to strike his conviction in the 288(c)

did not have a duty to advise defendant of the requirement. The People base their
argument in part on People v. Picklesimer (2010) 48 Cal.4th 330, 337-338. In the context
of addressing the scope of a trial court’s post-remittitur jurisdiction to issue all orders
necessary to carry judgment into effect, Picklesimer referred to the defendant’s sex
registration requirements as “collateral consequences” of the judgment. (Ibid.) That
statement was, as the People concede, dicta in a case that was about jurisdiction and not
about whether sex offender registration requirements are direct or collateral
consequences. In any event, McClellan—a California Supreme Court case holding sex
offender registration requirements are a direct consequence of a conviction—has not been
overruled.
15
He filed, for example, a “Motion for a Dismissal of This Action or a New Trial
and/or Arrest of Judgement [sic] (PC1181; 1185; 1187 and/or 1188); Common Law
Motion to Dismiss”; and a “Motion for a Judgement of Acquittal; or New Trial of
BA130843; or Dismissal of This Action; and/or Arrest of Judgement in BA130843;
Common Law Motion to Dismiss.”

12
case, those motions constituted an improper collateral attack on the 288(c) case.
Although a trial court must advise defendants of the direct consequences of a guilty plea,
including any registration requirements (McClellan, supra, 6 Cal.4th at pp. 375-376 &
fn. 8), the requirement an accused be advised of the consequences of the plea is not
constitutionally compelled, and failure to advise as to consequences constitutes error
which requires that the plea be set aside only if prejudice is demonstrated. (People v.
Edelbacher (1989) 47 Cal.3d 983, 1031-1032; In re Moser, supra, 6 Cal.4th at p. 352.)
Because a failure to advise a defendant of the penal consequences of a plea does not
constitute constitutional error, defendant cannot collaterally attack his section 288,
subdivision (c) conviction by way of a motion to strike the conviction in the current case.
(See People v. Sumstine (1984) 36 Cal.3d 909, 922 [“a defendant seeking to challenge a
prior conviction on any ground must allege actual denial of his constitutional rights”].)
We do note that defendant filed a petition for writ of habeas corpus, designating
on its cover page the case numbers in this case (BA377243) and the 288(c) case
(BA130843). But he filed it on June 3, 2011, after the court trial in this case concluded.
It was denied on August 12, 2011, and the reasons for the denial are not in the record on
appeal. It is also unclear whether defendant appealed the denial of his writ petition.
Therefore, on this record, it appears that a court below did consider the issue of the
misadvisement on the merits and rejected it.
Notwithstanding that it cannot be determined on this record whether defendant
was advised of registration requirements in the 288(c) case, defendant would, in any
event, have to establish he was prejudiced as a result of any misadvisement, that is, it is
reasonably probable he would not have entered into the plea agreement had he been
advised of the lifetime registration requirement. (See, e.g., McClellan, supra, 6 Cal.4th at
p. 378 [“Although defendant alleges that had he properly been advised, he would not
have entered his plea of guilty, there is nothing in the record on appeal to support this
contention”]; In re Moser, supra, 6 Cal.4th at pp. 352-353.) Nothing in this record shows
that defendant was prejudiced.

13
 To the contrary, the registration requirement is automatic, and therefore defendant
had no negotiating power with respect to it. (McClellan, supra, 6 Cal.4th at p. 380
[registration requirement is not a permissible subject of plea negotiation]; Wright v.
Superior Court (1997) 15 Cal.4th 521, 527.) Defendant could not have made striking the
registration requirement a term of his plea, and he fails to state he would not have entered
into the plea agreement had he been properly advised. In fact, the notice in the
information in the 288(c) case states: “ ‘NOTICE: Conviction of this offense will
require you to register pursuant to Penal Code section 290. Willful failure to register is a
crime.’ ” He was also charged with six counts of violating section 288, subdivision (c),
but was allowed to plead to only one count, receiving 36 months’ probation.
That defendant was not prejudiced by any misadvisement about the registration
requirement is further demonstrated by his failure to challenge the requirement until this
case was filed. People’s exhibit 1 shows that, notwithstanding any failure to advise him
of the requirement in 1996, he was aware of it at least as of January 3, 2002. At that
time, he signed a notice of sex offender registration requirements in the presence of
Deputy Olivas, who testified at trial. He signed similar notices in 2003 and 2009. Yet,
the record does not show that defendant took any action to set aside his plea in the 288(c)
case based on any misadvisement of the sex offender registration requirement until the
current case was filed. (See, e.g., McClellan, supra, 6 Cal.4th at p. 377 [absent a timely
objection, a defendant waives a claim of error as to a trial court’s misadvisement
concerning the consequences of a guilty plea]; cf. People v. Zaidi, supra, 147
Cal.App.4th at pp. 1488-1489 [record contained evidence of prejudice and of defendant’s
timely objection that he had never been advised his registration requirement was for
life].)
We therefore conclude that defendant is not entitled to a reversal of the judgment
because of any alleged misadvisement in the 288(c) case about the sex offender
registration requirement.

14
IV. There is sufficient evidence defendant failed to register his change of address
after his 2009 release from jail.
Defendant next argues that there is no evidence he committed the specific crime
with which he was charged; that is, section 290.012, subdivision (a). That section
provides: “Beginning on his or her first birthday following registration or change of
address, the person shall be required to register annually, within five working days of his
or her birthday . . . .” (§ 290.012, italics added.) Defendant reasons that because section
290.012 requires a person to re-register on his or her first birthday “following
registration” and because defendant never registered, he cannot be found guilty of failing
to re-register.
The section, however, also requires a defendant to register following a “change of
address.” There is sufficient evidence he failed to do that. Defendant was charged with
violating section 290.012 “[o]n or about October 27, 2009.” Deputy Olivas testified that
defendant was released from custody on or about July 14, 2009. Otis Graham testified
that he and defendant were living together at 2403 West 75th Street in Los Angeles in
October 2009. Defendant’s birthday is October 20, 1965. Because defendant changed
his address from jail to the address at West 75th Street, he should have registered that
address within five days of his October 20th birthday in 2009. (§ 290.012.) But
defendant never registered as a sex offender.
Defendant asserts that designating his move from jail to the address on West 75th
Street a “change of address” does not further the purpose of the sex registration law.
That purpose is to monitor convicted sex offenders to ensure they are readily available for
police surveillance. (People v. Williams (2009) 171 Cal.App.4th 1667, 1672.) Requiring
a convicted sex offender to register within five days of his or her first birthday following
release from jail furthers that purpose. It likely would be common for a person who has
been incarcerated to lose whatever living accommodations they had before entering jail.
For the police to assume that a person released from jail will reside at their former
address would be an illogical assumption that would hinder law enforcement’s ability to

15
monitor sex offenders. Therefore, a move from jail to a former address constitutes a
change of address.
V. Due process.
Defendant was convicted in the 288(c) case in 1996. Fourteen years passed,
however, before charges were filed claiming he’d failed to comply with sex registration
requirements (§ 290.012, subd. (a)). Defendant contends that this delay compromised his
ability to defend against the current charges, thereby denying him due process under Fifth
and Fourteenth Amendments of the United States Constitution. We disagree.
Unreasonable delay between the time a crime is committed and the accusatory
pleading is filed may constitute a denial of the right to a fair trial and to due process of
law under the state and federal Constitutions. (People v. Morris (1988) 46 Cal.3d 1, 37,
disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5;
People v. Cowan (2010) 50 Cal.4th 401, 430.) A defendant seeking to dismiss a charge
on this ground must demonstrate prejudice arising from the delay, and the prejudice must
be weighed against justification for the delay. (Morris, at p. 37; see also Scherling v.
Superior Court (1978) 22 Cal.3d 493, 504-507.) “ Prejudice may be shown by ‘ “loss of
material witnesses due to lapse of time [citation] or loss of evidence because of fading
memory attributable to the delay.” ’ [Citation.]” (Cowan, at p. 430; see also People v.
Abel (2012) 53 Cal.4th 891, 908.)
“ ‘[U]nder California law, negligent, as well as purposeful, delay in bringing
charges may, when accompanied by a showing of prejudice, violate due process. . . . If
the delay was merely negligent, a greater showing of prejudice would be required to
establish a due process violation.’ [Citation.] If the defendant establishes prejudice, the
prosecution may offer justification for the delay; the court considering a motion to
dismiss then balances the harm to the defendant against the justification for the delay.
[Citation.] But if the defendant fails to meet his or her burden of showing prejudice,
there is no need to determine whether the delay was justified. [Citations.]” (People v.

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Abel, supra, 53 Cal.4th at p. 909, fn. omitted.)16 A trial court’s motion to dismiss for
prejudicial pre-arrest delay is reviewed for an abuse of discretion, although we defer to
any factual findings if substantial evidence supports them. (People v. Cowan, supra,
50 Cal.4th at p. 431.)
Given the standard of review, the People’s argument that defendant forfeited this
issue is well taken. Although defendant did file motions to dismiss in the court below
referencing the delay in filing charges as being “so unfair that it shocks the conscience of
the law and the community,” he did not expressly raise the due process argument. Nor
does he cite where in the record the trial court addressed any due process argument or
gave the prosecutor the opportunity to justify the delay between the commission of the
offense and the filing of charges. In the absence of a justification for the delay, the trial
court could not balance any claimed harm (here, the loss of the superior court file in the
288(c) case) against the reason for the delay.
In any event, the prejudice defendant claims is the alleged loss of the superior
court file in case No. BA130843, the 288(c) case. As we have found, even in the absence
of that file, the disposition was sufficient evidence he was convicted of a sex offense
triggering the registration requirements in section 290. As to any claim that the file
would have shown that the trial court in the 288(c) case never advised him of the
registration requirement, this record contains no evidence of that, beyond defendant’s
bare assertion the advisement was never given. Nor does the record show that defendant
attempted to obtain the reporter’s transcript from his 1996 sentencing hearing, which
would show whether he was advised of the sex offender registration requirement.

16
Because the law under California’s Constitution is “at least as favorable to
defendant as federal law,” courts apply California law to such due process claims.
(People v. Abel, supra, 53 Cal.4th at p. 909, fn. 1.)

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 We therefore cannot conclude, on this record, that defendant’s due process rights
were violated.
VI. Cumulative error.
Defendant contends that the cumulative effect of the purported errors deprived
him of a fair trial. As we have “ ‘either rejected on the merits defendant’s claims of error
or have found any assumed errors to be nonprejudicial,’ ” we reach the same conclusion
with respect to the cumulative effect of any purported errors. (People v. Cole (2004)
33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)

DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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