Filed 8/7/15 P. v. Wells CA1/5

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




THE PEOPLE,

         Plaintiff and Respondent,                                                    A142136

         v.                                                                           (Lake County
                                                                                      Super. Ct. Nos.
VERONIKA I. WELLS,                                                                    CR931905, CR933275)

      Defendant and Appellant.
______________________________________/

         In 1982, appellant Veronika I. Wells was convicted of two counts of oral
copulation with a person under 18 (Pen. Code, § 288a, subd. (b)(1))1 and the trial court
imposed mandatory sex offender registration pursuant to section 290. In 2013, Wells
pled no contest to failing to update her sex offender registration within five working days
of her birthday (§ 290.012, subd. (a)) and the court suspended imposition of sentence and
placed Wells on probation. In 2014, Wells pled no contest to failure to register as a sex
offender within five working days of moving (§ 290.013, subd. (a)). The court concluded
Wells violated probation, sentenced her to state prison, and ordered her to register as a
sex offender pursuant to section 290.
         On appeal, Wells contends: (1) trial counsel rendered ineffective assistance by
failing to file a writ petition seeking relief from mandatory sex offender registration

1
         Unless noted, all further statutory references are to the Penal Code.
                                                             1
under People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier); and (2) the court lacked
jurisdiction at the sentencing hearing to order her to register as a sex offender.
       We affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
       In 1982, Wells was convicted of two counts of oral copulation with a person under
18 (§ 288a, subd. (b)(1)) and the trial court imposed mandatory sex offender registration
pursuant to section 290. In 2013, Wells pled no contest to failing to update her sex
offender registration within five working days of her birthday (§ 290.012, subd. (a)) and
the court suspended imposition of sentence and placed her on probation. Just over a
month later, the probation department filed a violation notice and the People later charged
her with two counts of failing to file a change of address within five working days of
moving (§ 290.013, subd. (a)).
       In 2014, Wells pled no contest to one count of failing to register a change of
address within five days of moving (§ 290.013, subd. (a)), which the court determined
constituted a probation violation. At the plea hearing, Wells’s attorney noted, “I might
add that under Hofsheier, . . . I’ve contacted the public defender in Orange County about
getting a writ to have her registration requirement vacated. But I personally can’t go to
Orange County to do it.”2 At the sentencing hearing, Wells’s attorney explained, “[h]er
prior record consists of the underlying offense . . . from 1982 and represents conduct that
. . . is no longer [ ] mandatory [registerable] conduct. But . . . it takes a [ ] writ to fix that.
[¶] And the offense was in Orange County, and I called down there and sent emails and
none of it was ever responded to.” In May 2014, the court sentenced Wells to two years
in state prison and ordered her to register as a sex offender pursuant to section 290.




2
       Wells’s 1982 conviction was in Ontario, California.
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                                        DISCUSSION
                                               I.
                   Wells’s Ineffective Assistance of Counsel Claim Fails
       In Hofsheier, the California Supreme Court held mandatory sex offender
registration for those convicted of voluntary oral copulation with a 16- or 17-year-old
minor violated equal protection. (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193.)
Hofsheier created a class of persons who might be entitled to relief from the mandatory
sex offender registration requirement. (See People v. Picklesimer (2010) 48 Cal.4th 330,
336-337.) Our high court later held persons no longer in custody, whose appeals are
final, must file a petition for writ of mandate in the trial court to obtain Hofsheier relief.
(Id. at p. 335.) In early 2015, however, our high court overruled Hofsheier and held the
mandatory lifetime sex offender registration requirement for those convicted of oral
copulation with a minor under 16 (§ 288a, subd. (b)(2)) does not violate equal protection.
(Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888 (Johnson).)
       Wells contends trial counsel rendered ineffective assistance by failing to file a writ
petition seeking relief under Hofsheier from the mandatory sex offender registration
requirement. To prevail on a claim of ineffective assistance of counsel, defendant “must
establish not only deficient performance, i.e., representation below an objective standard
of reasonableness, but also resultant prejudice.” (People v. Bolin (1998) 18 Cal.4th 297,
333.) Here, Wells cannot establish prejudice from trial counsel’s failure to a petition for
Hofesheier relief because Johnson overruled Hofsheier. The ruling in Johnson is
retroactive. (Johnson, supra, 60 Cal.4th at p. 889.) Wells’s inability to establish
prejudice is fatal to her ineffective assistance of counsel claim. (People v. Boyette (2002)
29 Cal.4th 381, 430-431 [appellate court need not determine whether counsel’s
performance was deficient if there was no prejudice].)




                                              II.
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        The Court Had Jurisdiction to Order Wells to Register as a Sex Offender
       Without citing any authority, Wells contends the sentencing court lacked
jurisdiction to order her to register as a sex offender because her “failures to update her
registration and inform of a change of address . . . are not ‘registerable offenses.’” We
are not persuaded. As we have explained, Wells was convicted of two counts of oral
copulation with a person under 18 in violation of section 288a, subdivision (b)(1).
Section 290, subdivision (c) requires individuals convicted of violating section 288a to
register as sex offenders. (Johnson, supra, 60 Cal.4th at p. 874.)
                                      DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Jones, P. J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




A142136
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