Tillman

Michael Edward Tillman appeals from a conviction of failing to register as a sex offender. He claims he received ineffective assistance of counsel in that his attorney failed to defend against the charge on the ground appellant had not been constitutionally convicted of a prior registrable offense. This contention is further addressed in a related petition for writ of habeas corpus. On appeal, appellant additionally urges that the use of his prior rape conviction both as an element of the substantive registration offense and as a “strike” to enhance his sentence was improper.

Statement of the Case

Appellant was charged by information filed on January 13,1997, with one count of failing to register as a sex offender between September 1 and November 21, 1996. (Pen. Code, § 290, subd. (a)(1).) It was alleged that appellant had previously been convicted of rape (§261, subd. (a)(2)) on May 23, 1984. It was further alleged that appellant was presumptively ineligible for probation under section 1203, subdivision (e)(4), and that his sentence was subject to enhancement under section 667.5, due to four prior felony convictions and prison terms: the 1984 rape conviction; an…