People v. Clark CA1/3

Filed 5/13/14 P. v. Clark CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A136145

v. (Sonoma County JAMES MADISON CLARK, JR., Super. Ct. No. SCR-609530) Defendant and Appellant.

In re JAMES CLARK on Habeas Corpus A140603

Defendant James Madison Clark, Jr. was convicted for failure to reregister as a sex offender after being released from incarceration after 30 or more days in prison. (Pen. Code, § 290.015, subd. (a).)1 The court found four prior prison term enhancements to be true (§ 667.5, subd. (b)), including one for a previous section 290.015 offense. The court stayed two of those enhancements and sentenced Clark to a total of six years in prison, representing a two-year midterm for the section 290.015 conviction, doubled to four years as a second strike, plus two years for the prior prison term enhancements. Clark was convicted in 1999 of unlawful sex with a minor (§ 261.5, subd. (c)), a crime for which sex offender registration is not mandatory (§ 290, subd. (c)), but for which registration may be required in the court’s discretion (§ 290.006; People v. Hofsheier (2006) 37 Cal.4th 1185, 1197). Clark contends his conviction for failing to register must be reversed because the prosecution did not introduce substantial evidence

1 Unless otherwise indicated, subsequent statutory references are to the Penal Code.

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that he was ordered to register. He argues his counsel was ineffective because he did not move for a judgment of acquittal on that ground at the close of the People’s case, and because he chose to have Clark testify on his own behalf. But Clark was not entitled to acquittal when the People rested because he had stipulated before the hearing began that he would testify on his own behalf. Thus, the motion he faults counsel for failing to make would have been futile. During his testimony, Clark acknowledged that he was required to register. His admission remedied any failure of proof of the point in the prosecution’s case. Accordingly, the appeal fails. So does his petition for writ of habeas corpus. In his writ petition, Clark argues that the sex offender registration requirement was not lawfully imposed upon him in 1999. He claims he was neither ordered to register before judgment was executed, nor advised by his lawyer at the time of his 1999 plea agreement that registration was a lifetime requirement. Both arguments fail because he is no longer in actual or constructive custody for the 1999 conviction. I. APPEAL No. A136145 A. Background In January 2012, Clark waived his right to a preliminary hearing, and the case was subsequently continued to April 3, 2012. At the April 3 hearing, defense counsel told the court: “ . . . Mr. Clark gets arrested on a 261.5 and convicted of that in 1999. . . . [T]here is a failure to register in 2009 and he goes to prison on the failure to register. And he comes out of prison and then there is an immediate failure to register again on that. “Now in the interim, since Mr. Clark has been arrested, he completed I believe his parole violation on this matter. He’s been out doing many positive things. . . . “The People’s offer is a stipulated five-year term at 80 percent . . . . “Now he could go ahead and plead guilty, he could plead open, and then we don’t have a record as to what his thought process was at the time he absconded and did not register as he was required to do pursuant to 290. But I think to make a more clear record and fully lay out what I think is important is I would agree, if the district attorney would,