Baucom v. Super. Ct.

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Filed 3/17/15 Baucom v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
DANA BAUCOM,
Petitioner,
v.
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
E060437
(Super.Ct.Nos. WHCSS1100203,
CIVDS1312971 & MVI27346)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. Donald R. Alvarez,
Judge. Petition denied.
Phyllis K. Morris, Public Defender, Stephan J. Willms, Deputy Public Defender,
for Petitioner.
No appearance for Respondent.

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Michael A. Ramos, District Attorney, Brent J. Schultze, Deputy District Attorney,
for Real Party in Interest.
In June of 1991, petitioner Dana Baucom pleaded guilty to misdemeanor indecent
exposure. (Pen. Code, § 314.)1 The record of conviction does not indicate that he was
told he would be required to register as a sex offender (§ 290), and he affirmatively
denies that he was so informed. He also asserts that if he had been so informed, he would
not have pleaded guilty.2
Petitioner also states that the registration requirement has never previously been
enforced as a condition of parole, although he concedes in the petition that he has been in
and out of prison ever since the subject conviction. However, when he was most recently
paroled in December of 2010 he was informed that he was required to register, and his
conditions of parole included the restrictions mandated by statute.3
1 Unless otherwise specified, all further statutory references are to the Penal
Code.
2 There is no declaration supporting the petition. Instead, the record consists of
multiple copies of defendant’s multiple previous filings (see infra) and multiple copies of
the exhibits to the multiple filings. This is not satisfactory.
3 Such as residency restrictions and global positioning satellite (GPS) monitoring.

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Petitioner then undertook efforts to invalidate the requirement. In June 2011 he
filed a petition for writ of habeas corpus in the Superior Court of San Bernardino County.
This was denied on the basis that it was untimely and sought relief not available by
habeas corpus. Petitioner promptly filed a substantially identical petition in this court,
which summarily denied it without comment.4 He then petitioned the Supreme Court,
which denied the petition with a citation to People v. Villa (2009) 45 Cal.4th 1063, 1070-
1071.5
Petitioner then obtained counsel and filed a petition for writ of mandate in the
superior court, seeking the relief of vacating his conviction on the basis of inadequate
advisals or directing the removal of his name from the “state sex offender registry.” The
People responded both that petitioner had failed to establish that he was not advised of
the requirement, and that mandamus was unavailable. After extensive briefing on the
issue of timeliness, inter alia, the superior court denied the petition.
Petitioner then returned to this court, which denied his petition after requesting an
informal response from the People. The next stop was the Supreme Court again, and this
time that court granted review and transferred the matter back to this court with directions
to issue an order to show cause, which we have done. This order cited no authority and
4 This court’s notes reflect that our view was that neither habeas corpus nor
coram nobis afforded an avenue for relief.
5 The cited pages discuss what constitutes “in custody” for habeas corpus
purposes, citing In re Stier (2007) 152 Cal.App.4th 63, 82-83, which held that the sex
offender registration requirement was not “custody.”

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gave no clue as to that court’s thinking about this case. However, the petition for review
argued the registration requirement in light of In re King (1984) 157 Cal.App.3d 554
(King)—a question first raised by the district attorney opposing the petition filed in this
court.
We now address the matter formally on the merits, with our initial attention on
King, supra, 157 Cal.App.3d 554 and cases following that decision.
DISCUSSION
A.
We first consider the issue of remedy. As the Supreme Court’s citation to People
v. Villa, supra, 45 Cal.4th 1063 in denying Baucom’s petition acknowledged, habeas
corpus does not lie where the petitioner is no longer in actual or constructive custody.
Nor is relief available in coram nobis for the violation of a constitutional right or a
mistake of law. (People v. Kim (2009) 45 Cal.4th 1078, 1104-1105 (Kim); People v.
Mbaabu (2013) 213 Cal.App.4th 1139, 1148.) Indeed, in Kim the court flatly rejected the
proposition that coram nobis should be extended to reach every “erroneous or unjust
judgment on the sole ground that no other remedy [at the time of filing] exists.” (Kim,
supra, at p. 1105.)
Tacitly conceding the points, petitioner has framed this petition in terms of
mandamus, relying on People v. Picklesimer (2010) 48 Cal.4th 330 (Picklesimer) as
authorizing relief through that remedy.

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Picklesimer addressed the “problem” created by the decision in People v.
Hofsheier (2006) 37 Cal.4th 1185, 1206-1207 (Hofsheier), partially overruled on other
grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888, which held that
mandatory sex offender registration for those convicted of voluntary oral copulation with
a 16- or 17-year-old minor violated equal protection because those convicted of voluntary
intercourse with similarly aged minors were not subject to the registration requirement.
Hofsheier therefore created a class of persons who might be entitled to relief from the
registration requirement, but because that case came up on direct appeal from the
judgment, the decision provided no hint as to what avenue for relief might be available to
those as to whom the registration requirement had been imposed in judgments final by
the time Hofsheier was decided.
Picklesimer held that individuals affected by Hofsheier but who were no longer in
custody could seek a writ of mandate, although the decision in that case simply
terminated the current proceeding without prejudice to the filing by the defendant of an
appropriate petition in the trial court. (Picklesimer, supra, 48 Cal.4th at pp. 336, 346.)6
6 Picklesimer had filed a motion in the trial court seeking to be removed from the
state sex offender registry and to be relieved of his duty to register. The Supreme Court
agreed with the Court of Appeal that the trial court had had no jurisdiction to consider
such a freestanding motion and that the denial of such a motion was not appealable.
Because the record did not make it possible to determine whether Picklesimer, although
not subject to mandatory registration, might be subject to a discretionary order for
registration under section 290.006, the Supreme Court declined to treat the appeal as a
petition for writ of mandate. Hence, the judgment of the Court of Appeal was affirmed
without prejudice to the filing of a petition for writ of mandate in the superior court.

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To so hold, the court was obligated to, and did, find that placement on, or removal from,
the state sex offender registry was merely a “ministerial act” dependent solely on whether
the person had suffered a qualifying conviction, and therefore removal could
appropriately be compelled by mandamus within the framework of Code of Civil
Procedure sections 1085 and 1086.7 (Picklesimer, at pp. 339-340.)
We do not read Picklesimer as approving mandamus as a “catch-all” to challenge
convictions, or anything relating to convictions long since final and which cannot be
reached by the established remedies of habeas corpus or coram nobis.8 Rather, we
interpret the decision as sui generis, prompted by the effect of Hofsheier on a substantial
number of defendants who had no legal basis for challenging the sex offender registration
requirement until after all recognized remedies had become unavailable.9 Here, by
7 Picklesimer’s motion also sought to have him relieved of the obligation to
register. As the court itself noted, the registration requirement is not part of a sentence,
but is “a separate consequence of . . . conviction automatically imposed as a matter of
law.” (Picklesimer, supra, 48 Cal.4th at p. 338.) A writ of mandate would not appear to
reach such a request, although declaratory relief would at least provide an appropriate
framework. (See Abbott v. Los Angeles (1960) 53 Cal.2d 674, 678 [on the use of
injunctive and declaratory relief to prevent enforcement of an unconstitutional statute].)
8 The petition seeks to vacate Baucom’s conviction or grant any other relief this
court considers “appropriate.”
9 Hofsheier disapproved People v. Jones (2002) 101 Cal.App.4th 220, which had
rejected the same constitutional challenge accepted in the former case. Thus, for a period
of several years the law was “clear” that applying the registration requirement to those
convicted of voluntary oral copulation with 16- or 17-year-old minors was lawful.

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contrast, petitioner makes an individualized attack on a specific conviction. We are not
persuaded that Picklesimer requires that we entertain a petition for writ of mandate.10
However, the point is moot and we need not decide it, because if we reach the
merits, we conclude that Baucom is not entitled to relief. We will accept that he was not
advised of the duty to register. But not only does the docket not show that he was
ordered to register, the law at the time forbade such an order.
B.
At all pertinent times, “indecent exposure” has been a listed registrable offense
under sections 290 et seq. However, in 1984—seven years before petitioner entered his
plea of guilty to violating section 314—King, supra, 157 Cal.App.3d 554 noted that sex
offender registration was “punishment” for constitutional purposes, citing In re Reed
(1983) 33 Cal.3d 914, 922. It then held that the registration requirement constituted cruel
and unusual punishment violating the Sixth Amendment for those individuals convicted
of misdemeanor violations of section 314. (King, at p. 558.) Thus, at the time of
petitioner’s conviction, the trial court was bound by King under the principles of stare
decisis. Indeed, a failure to follow King would have been in excess of the court’s
jurisdiction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454-455.)
10 We also note that a defendant may raise certain constitutional challenges to
prior convictions despite their finality when they are raised as affecting a subsequent
criminal proceeding. (People v. Sumstine (1984) 36 Cal.3d 909.)

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It is true that after King, but before petitioner entered his plea, other courts adopted
an expressly “as applied” or “case by case” approach for convictions for annoying or
molesting a child under section 647.6 and its predecessor, former section 647a. (See
People v. DeBeque (1989) 212 Cal.App.3d 241 (DeBeque); People v. Monroe (1985) 168
Cal.App.3d 1205 (Monroe).) King, however, remained the only directly on point
authority.11
At the point in time petitioner entered his plea, In re Reed, supra, 33 Cal.3d 914
had determined on a facial analysis that the 290 registration requirement was
unconstitutional as it relates to individuals convicted of lewd or dissolute conduct under
section 647, subdivision (a). Going through the same facial analysis, the court in King,
supra, 157 Cal.App.3d 554 came to the same conclusion as to individuals convicted of
violating section 314.1. Thus, at the time of the petitioner’s plea, the law of the state was
that petitioner was not required to register under section 290.12
11 After Baucom’s conviction, a second “King” case involving far more
aggravated conduct (and a different defendant) took the approach that the “case by case”
approach was also appropriate for indecent exposure. (People v. King (1993) 16
Cal.App.4th 567, 575-576.) Nevertheless, at the time of his plea the first King case was
controlling and, as we have explained, no rational court could have found the registration
requirement appropriate for petitioner when it was not in King.
12 We do not agree with petitioner that DeBeque, supra, 212 Cal.App.3d 241
and Monroe, supra, 168 Cal.App.3d 1205), created a “conflict” in the law. DeBeque
and Monroe dealt with violations of Penal Code section 647.6, a successor statue to
section 647a. As noted by the court in DeBeque, “ ‘[t]he offenses which constitute a
violation of Penal Code section 647a [the predecessor to section 647.6], are more
offensive than violations of section 647, subdivision (a), and section 314,
subdivision (1).’ ” (DeBeque, at p. 250.)

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Furthermore, even if we agree with petitioner that cases like DeBeque created a
“conflict” in the law, it is impossible to conceive of a less egregious offense than that
committed by petitioner. He was parked on a dirt road in an unincorporated area near
Victorville in the early evening, masturbating to pornographic magazines with his pants
down, when a deputy sheriff stopped to investigate the vehicle. Petitioner told the officer
that his wife did not like him to look at the magazines at home, so he had gone out in
search of privacy. Although he was parked about two-tenths of a mile from a school,
there is no indication in the record that any children were present in the area. In King,
supra, 157 Cal.App.3d 554, the defendant exposed his flaccid penis to two teen-aged
girls in a parking lot. Although he did not speak to or approach them, his conduct was
clearly more suggestive of a deviant nature than that of petitioner.
Thus, even if the court which accepted Baucom’s plea thought it had some
discretion to impose a registration requirement, no rational court could have found the
requirement lawful for petitioner after King. And as we have noted, the record reflects no
such requirement. In this respect we acknowledge that as the court noted in Picklesimer
(see fn. 9, supra), the registration requirement of section 290 is not part of a sentence and
the statute is self-executing. (See People v. Kennedy (2011) 194 Cal.App.4th 1484, 1491;
In re Watford (2010) 186 Cal.App.4th 684, 693.) However, we are also aware that trial
courts commonly inform a convicted defendant of the requirement if the court believes it
applies. In any event, the fact remains that the requirement could not have been validly
applied to Baucom when he entered his plea. Hence, there was no duty on the part of the

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court to advise him about the registration requirement, and his plea was knowing,
intelligent and voluntary in the constitutional sense.13
Of course, as the parties agree, times have changed, and neither King nor Reed
upon which it relied are good law. The Supreme Court overruled Reed on the
“punishment” point in In re Alva (2004) 33 Cal.4th 254, 292 (Alva), and the court which
decided the first King case reversed its position on the authority of Alva in People v.
Noriega (2004) 124 Cal.App.4th 1334, 1338, 1342. Presumably it was this change in the
law that prompted the authorities to determine that Baucom is, in fact, required to
register.
It thus becomes apparent that petitioner’s issue is not with the trial court and its
advisals, but with the appellate courts. We agree that his position is unfortunate, but he is
essentially in the same position as any defendant who is convicted (by plea or otherwise)
of an offense which, years later, is added to section 290. It is well-established that such a
defendant is subject to the requirement and there is no ex post facto violation. (See
People v. Castellano (1999) 21 Cal.4th 785, 799 [offense added after commission of
crime but before conviction]; Hatton v. Bonner (9th Cir. 2003) 356 F.3d 955, 964.)14
13 We reject any contention that trial courts have a pre-plea duty to advise
defendants of potential changes in the law which might affect them. Such a duty would
be impossible to define or limit.
14 We do note that Hatton v. Bonner, supra, 356 F.3d 955 was decided prior to
the adoption of “Jessica’s Law” in 2006, which added the strict residency restrictions to
section 3003.5.

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DISPOSITION
Accordingly, for all the reasons set forth above, the petition for writ of mandate is
denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
MILLER
J.

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