Obligation to advise of lifetime sex offender registration
A trial courts failure to advise about the lifetime sex offender registration requirement is reversible error. People v. McClellan, 6 Cal.4th 367 (1993). A defendant will be entitled to relief based on the trial courts misadvisement only if the defendant raises the objection to the requirement in a timely fashion and establishes prejudice based on the misadvisement. Id. at p. 377; People v. Walker, 54 Cal.3d 1013 (1991); People v. Zaidi, 147 Cal.App.4th 1470 (2007).

II. Requirement to advise regarding lifetime sex offender registration

a. Lifetime registration advisement

The purpose of Penal Code section 290 is to assure that persons convicted
of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. Barrows v. Municipal Court, 1 Cal.3d 821, 825-26 (1970); see also In re Reed, 33 Cal.3d 914, 919; In re Smith, 7 Cal.3d 362, 367 (1972); 3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, 1416-1417, 1678-81. The statute imposes a lifelong requirement of registration and re-registration absent a court order releasing the registrant from the penalties and disabilities of his conviction . . . . Barrows, 1 Cal.3d at 825 (citation and footnotes omitted).

A trial courts obligation to advise a defendant about the sex offender
Registration requirement dates back to the seminal cases of Bunnell v. Superior Court, 13 Cal.3d 592 (1975), and In re Birch, 10 Cal.3d 314 (1973). Failure to advise of the sex registration requirement is error and violates the trial courts duty to advise the defendant of the direct consequences of a plea. See People v. McClellan, 6 Cal.4th 367 (1993); Bunnell, 13 Cal.3d 592; People v. Zaidi, 147 Cal.App.4th 1470 (2007).

A court must not only advise the defendant of the registration requirement, but also must specify that the registration obligation is lifelong. Zaidi, 147 Cal.App.4th at 1481. A court does not satisfy its duty to inform simply by stating that the defendant must register as a sex offender pursuant to section 290. Ibid. The severity of the lifetime requirement warrants no less than a complete and thorough advisement:

The reference to an abstract statutory reference (you shall register as a sex offender pursuant to Penal Code section 290) does not inform the defendant of registration's most dire element. Registration is not for a finite period, like a jail incarceration or probation; it will remain a requirement for the remainder of the defendant's life, with all its attendant shame, ignominy, and potential limitation on employment and housing. Given the magnitude of the consequence, advising the defendant of the lifetime requirement of registration will not impose an undue burden on trial courts. Any additional burden is outweighed by the benefit of assuring that the defendant's waiver of his rights when entering a plea is voluntary and intelligent.

Id. at 1483-84. Only if a defendant is informed of the full duration of the registration requirement can he or she fully appreciate the gravity of the consequence of the plea, so as to make the plea voluntary and intelligent. Id. at 1482.

b. Timeliness and waiver

To demonstrate a trial courts advisement error, the defendant must raise an
objection to the error in a timely manner, and must prove prejudice.

When the error alleged is a failure to advise of the consequence of a plea, the error is waived if not raised by a timely objection at or before sentencing. People v. Walker, 54 Cal.3d 1013, 1023 (1991).

In People v. McClellan, the Supreme Court found that the defendant had waived his claim of error by failing at the sentencing hearing to interpose a timely objection to the registration requirement. 6 Cal.4th at 377. In that case, though the plea agreement had not mentioned a sex offender registration requirement, defense counsel was aware of the probation officers report, filed 11 days prior to the sentencing hearing, recommending that defendant be ordered to register as a sex offender. Ibid. The court reasoned that defense counsel, [i]n the context of her objections at the sentencing hearing to other matters contained in the probation officers report, readily could have challenged the registration recommendation. Ibid. Furthermore, the court noted that the defense counsel had missed an opportunity to object to the registration requirement in the sentencing hearing when the trial court formerly imposed the requirement on the defendant. Ibid. The court concluded, therefore, that the defendant had waived any claim of prejudice arising from the trial courts error. Ibid.

In contrast, in People v. Zaidi, the court of appeal found that the defendant had not waived his claim of prejudice. 147 Cal.App.4th at 1477. In that case, like McClellan, the plea agreement made no mention of the requirement to register as a sex offender. Though the probation report recommended sex registration and the court imposed it at sentence over the objection of defense counsel, neither the presentence report nor the arguments of counsel mentioned that registration as a sex offender is a lifetime requirement. Ibid. The defendant filed a motion to withdraw the plea three months later, stating that he never knew that he would be required to register as a sex offender and that the requirement was lifelong. Id. at 1479-80.

The court therefore held that, unlike Walker, the present case does not involve a trial courts imposition at the sentencing hearing of a sentence at variance with the advice given at the earlier proceeding . . . . Id. at 1487 (quotation marks and citation omitted). Here, defendant was advised at his plea hearing of the possibility of registration, which would depend on the probation department's recommendation in its pre-sentence report. Defense counsel, by objecting at sentencing to imposition of registration, was plainly familiar with the report's recommendation that defendant be required to register. But nothing in the record suggests defendant himself was aware of the lifetime element of registration, nor should he be required to infer this missing information. Ibid.

If the lifetime nature of the registration requirement is not mentioned at the plea or sentencing hearing, therefore, a defendant will not be deemed to have waived the claim of error.

c. Prejudice

In addition to proving timeliness, a defendant asserting an error in the trial courts
advisement must also establish prejudice. See People v. Walker, 54 Cal.3d at 1022-23. [A] defendant (even on direct appeal) is entitled to relief based upon a trial court's misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that it is reasonably probable that the defendant would not have entered the plea of guilty had the trial court given a proper advisement. In re Moser, 6 Cal.4th 342, 352 (1993) (quoting Walker, 54 Cal.3d at 1022-23).

In McClellan, the court found that the defendant had failed to establish prejudice. The court emphasized that McClellans amended notice of appeal contained only an assertion by defendant that, but for the trial courts omission, he would not have pleaded guilty. 6 Cal.4th at 378. However,

[An] extrajudicial assertion is not a proper component of the record on appeal. Because the record of the trial court proceedings contains no evidence (nor even an assertion) concerning the baring of a registration requirement upon defendants decision to plead guilty, the prosecution never has had an opportunity to contest the assertion made by defendant on appeal, and the trial court had no occasion to pass upon the veracity of defendants present claim.

Ibid. Thus, the court held that there was nothing in the record on appeal to support McClellans claim of prejudice. McClellan, 6 Cal.4th at p. 378.

Unlike McClellan, the court of appeal in Zaidi found that the record contained sufficient evidence of prejudice from the failure to advise that registration was a lifetime requirement. 147 Cal.App.4th at 1477. The court distinguished its case from McClellan, noting that McClellan did not raise the issue of registration at all until his amended notice of appeal. Id. at 1488. In contrast, Zaidi petitioned to withdraw his plea based on a failure to advise of the lifetime requirement [w]ithin weeks of sentencing. Id. at 1488. Moreover, he supported his petition with a declaration that, while he was aware that he might have to register as a consequence of his plea, he understood that the length of the registration was concurrent with the period of probation. Had he known it was a lifetime requirement, he would never have entered his plea and would have insisted on going to trial. Id. at 1488-89. The court concluded that [o]n the record before us, there is no evidence to rebut defendant's assertion that he understood that his registration requirement would be only for the duration of his probation. Id. at 1489.

The Zaidi court looked to the totality of the circumstances to establish prejudice:

In light of (1) defendant's prompt effort to withdraw his plea on the grounds of lack of advisement, accompanied by his specific declaration that he would not have entered a plea had he known of the lifetime registration requirement; (2) the format of the oral sentencing and written probation forms that misleadingly suggested that the registration requirement was for the duration of probation only; and (3) the absence of evidence that defendant was made aware that registration would be for life, we conclude that defendant met his burden of establishing prejudice from the court's failure to advise that a consequence of his no contest plea would be lifetime registration as a sex offender. Under the totality of these circumstances, the denial of his motion to withdraw his plea was an abuse of discretion. (See People v. Harvey (1984) 151 Cal.App.3d 660, 667, 198 Cal.Rptr. 858.)

Id. at 1490.

Reading the prejudice holdings in McClellan and Zaidi together, it appears that a defendants own uncontradicted declaration that he would not have pleaded guilty had he been properly advised, is sufficient to establish prejudice, while a bare assertion within a notice of appeal will be insufficient.