Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04F04199, 05F11260
MAURO, J.
A jury convicted defendant Paul Bridges on count one of failing to annually register as a sex offender within five days of his birthday, and on count two of failing to inform law enforcement of his new address within five days after moving.
Defendant first contends on appeal that there is insufficient evidence to support his conviction on count two. Defendant argues applicable law requires proof that defendant moved to a new address in California, not to an address out of state. Defendant also argues that the only evidence of his move was his own out-of-court statement to the probation officer, which cannot be considered unless the People have independent proof of the offense. We conclude defendant was required to notify law enforcement within five days of moving, regardless of whether he moved inside or outside the state, and there was ample independent evidence that defendant failed to do so.
Similarly, defendant next contends the trial court erred in failing to give CALCRIM No. 359 as an instruction. CALCRIM No. 359 would have instructed the jury that defendant could not be convicted based on his out-of-court statement alone, and that the People had to have independent proof of the offense. We conclude that because there was ample independent proof of the offense charged in count two, any error in giving CALCRIM No. 359 as an instruction was harmless.
Finally, defendant contends the trial court improperly instructed the jury on the elements of count one, failing to annually register as a sex offender within five days of his birthday, because defendant was not required to do the annual update of his registration if he resided out of state, and the instructions did not clearly inform the jury of the People’s burden to prove that defendant resided in California on his birthday. The Attorney General responds that whether or not the instructions were misleading, it is nonetheless true that there was insufficient evidence to support a conviction on count one. The Attorney General agrees with defendant that he was not required to do the annual update of his registration if he resided out of state at the time of his birthday, and that the People did not prove when defendant moved out of state.
We will reverse count one as not supported by substantial evidence. In all other respects we will affirm the judgment.
BACKGROUND
On September 22, 2004, defendant, a convicted rapist, registered as a sex offender with the Sacramento Police Department. He listed his address as 1917 Grand Avenue in Sacramento. Defendant failed to provide the Sacramento Police Department with an annual update of his registration within five working days of his birthday, which was April 1, 2005.
In December 2005, Sacramento Police Detective Schindler investigated defendant’s failure to update his registration. Detective Schindler learned that defendant was no longer living at the registered address. A warrant issued for defendant’s arrest.
At the time, defendant was on probation for inflicting corporal injury on a cohabitant (case No. 04F04199). (Pen. Code, § 273.5; undesignated statutory references are to the Penal Code.) According to a statement defendant made to his probation officer in January 2005, he had moved to his girlfriend’s residence on Florin Wood Drive in Sacramento in December 2004.
In early 2006, however, defendant called Detective Schindler and said he was in Louisiana. Defendant had not informed the Sacramento Police Department that he was moving out of its jurisdiction. Detective Schindler advised defendant that a warrant had issued for defendant’s arrest. Detective Schindler did not hear from defendant again, but in 2008 a detective in Arkansas informed Detective Schindler that defendant had registered there as a sex offender.
Defendant was charged in case No. 05F11260 with two counts of failing to register as a sex offender. (§ 290, subd. (g)(2).) Count one of the amended information charged defendant with failure to perform the required annual update of his sex offender registration within five working days of his birthday in April 2005. (Former § 290, subd. (a)(1)(D).) Count two of the amended information charged defendant with failure to notify the last registering agency that he moved from his registered address within five working days of moving. (Former § 290, subd. (f)(1).) The amended information also alleged defendant had been convicted previously of rape, a serious felony within the meaning of sections 667, subdivisions (b)-(i) and 1170.12.
Defendant was charged with violating the Penal Code section and subdivisions in effect at the time he committed the offenses in 2005. Section 290, subdivision (a)(1)(D) is now section 290.012, subdivision (a); subdivision (f)(1) is now section 290.013, subdivision (a); and subdivision (g)(2) is now section 290.018, subdivision (b). In a prosecution under section 290, a defendant must be charged with the version of the statute in effect at the time he committed the offense. (See People v. Garcia (2001) 25 Cal.4th 744, 750 [applying the version of section 290 in effect when the offense occurred]; People v. Wallace (2009) 176 Cal.App.4th 1088, 1091, fn. 1 (Wallace).)
A jury convicted defendant on both counts, and defendant admitted the prior conviction allegation. The trial court found defendant had violated his probation in case No. 04F04199, the corporal injury on a cohabitant offense.
The trial court sentenced defendant as a “two striker” to two years and eight months in state prison in case No. 05F11260, and contemporaneously sentenced him to a consecutive one-year term in case No. 04F04199. The court awarded defendant 314 days of actual presentence credits and 156 days of presentence conduct credits. Because defendant was required to register as a sex offender, he was not entitled to the benefit of the more favorable conduct credit formula recently enacted. (§§ 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010] [one-for-one credit formula not applicable to sex registrants].)
DISCUSSION
I
Defendant contends there is insufficient evidence to support his conviction for failing to notify the authorities within five working days of moving.
His first argument in this regard is that the court in Wallace, supra, 176 Cal.App.4th 1088, held that this offense requires proof that defendant moved to another residence in California. (Id. at p. 1103.) But defendant’s claim of error is based on a misperception of the charged offense. Defendant was charged and convicted of a violation of former section 290, subdivision (f)(1), not a violation of former section 290, subdivision (a)(1)(A) as defendant suggests.
Former section 290, subdivision (f)(1) provided in relevant part: “If any person who is required to register pursuant to this section and who has a residence address changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, the person shall inform, in writing within five working days, the law enforcement agency or agencies with which he or she last registered of the new address or transient location and any plans he or she has to return to California, if known. If the person does not know the new residence address or location, the registrant shall inform the last registering agency or agencies that he or she is moving within five working days of the move, and shall later notify the agency or agencies of the new address or location within five working days of moving into the new residence address or location, whether temporary or permanent....” (Italics added; Stats. 2004, ch. 731, § 1; Stats. 2004, ch. 761, § 1.3.)
Thus, the People did not have to prove that defendant moved to a residence in California. Defendant had to notify the Sacramento Police Department that he had moved within five working days of moving, regardless of whether he moved to a residence inside or outside of the state.
Defendant also contends that the only evidence supporting count two is his statement to his probation officer that he had moved to his girlfriend’s residence on Florin Wood Drive in Sacramento in December 2004. Defendant argues that his out-of-court statement cannot be considered because the People failed to prove the corpus delicti of the offense with independent evidence.
In a criminal trial, the prosecution must prove the corpus delicti of the crime -- that is, the fact of injury, loss or harm, and the existence of a criminal agency as its cause -- without relying exclusively upon the defendant’s extrajudicial statements, confessions or admissions. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) This requirement of independent proof precludes conviction based solely on a defendant’s out-of-court statements. (Id. at p. 1178.) It “requires corroboration of the defendant’s extrajudicial utterances insofar as they indicate a crime was committed, and forces the People to supply, as part of their burden of proof in every criminal prosecution, some evidence of the corpus delicti aside from, or in addition to, such statements.” (Ibid., original italics.) The corpus delicti of a crime may be proven by circumstantial evidence and need not amount to proof beyond a reasonable doubt. (Id. at p. 1171.) Once the corpus delicti has been established, the defendant’s statements may be considered for their full value and used to strengthen the prosecution’s case. (Id. at pp. 1171, 1181.)
Viewing the evidence in the light most favorable to the judgment (People v. Jennings (2010) 50 Cal.4th 616, 638), there is ample independent evidence that defendant failed to notify the police department in writing within five days of moving from his last registered address on Grand Avenue. Defendant no longer lived at the Grand Avenue, Sacramento, address in December 2005 when Detective Schindler investigated why defendant had not complied with the birthday registration requirement. Thereafter, a detective in Arkansas telephoned Detective Schindler in 2008 to tell him defendant had registered there as a sex offender. Without question, defendant moved from the Grand Avenue address and did not notify the authorities within five days of doing so, regardless of when and where he moved. Having established the corpus delicti, the prosecutor could use defendant’s statements about moving in with his girlfriend in late 2004 and moving to Louisiana in 2006 to strengthen the People’s case.
Under the circumstances, defendant’s challenge fails regarding the sufficiency of the evidence supporting count two.
II
Defendant also contends the trial court erred by not instructing the jury regarding the People’s burden to prove the corpus delicti of the crime charged in count two with independent evidence before the jury could consider defendant’s out-of-court statements. (CALCRIM No. 359.)
The trial court has a duty to instruct sua sponte on the corpus delicti rule. (Alvarez, supra, 27 Cal.4th at p. 1181.) However, “[e]rror in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.]” (Ibid.) As long as there is “‘a slight or prima facie showing’” permitting an inference of injury, loss, or harm from a criminal agency, the jury may consider the defendant’s statements to strengthen the case on all issues. (Ibid.) “If, as a matter of law, this ‘slight or prima facie’ showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless.” (Ibid.)
As discussed in part I above, the requisite showing was made establishing the corpus delicti of the offense. Under the circumstances, the instructional error was harmless.
III
Defendant further contends the trial court improperly instructed the jury regarding count one, the alleged failure to do an annual registration update within five working days of his birthday. (Former § 290, subd. (a)(1)(D).) Defendant asserts the instructions did not clearly apprise the jury of the prosecutor’s burden to prove that defendant was residing in California on his birthday.
The People respond that regardless of whether the instructions were erroneous or misleading, there is insufficient evidence supporting defendant’s conviction and count one must be reversed. We agree.
In Wallace, supra, 176 Cal.App.4th 1088, the court held that the prosecution has the burden to prove the defendant was residing within California at the time of his birthday in order to establish a violation of former section 290, subdivision (a)(1)(D). (Id. at pp. 1105-1107.) The court explained that this is so because former subdivision (a)(1)(A), a subparagraph of the same statute, limited the registration requirements to persons “residing in California” and, under ordinary rules of statutory construction, this limitation carried over to the requirement to “update” one’s registration set forth in former subdivision (a)(1)(D). (Id. at pp. 1105-1106.) The appellate court observed: “Had the Legislature intended to omit the residency requirement set forth in subparagraph (A) from subparagraph (D), we believe it would have made such an intention clear, as it did in former subdivision (f)(1), which requires notification of address changes ‘whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state....’ [Citation.]” (Id. at p. 1106, fn. omitted.)
Former section 290, subdivision (a)(1) provided in relevant part: “(A) Every person [having a qualifying conviction] for the rest of his or her life while residing in California... shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing... in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides. [¶]... [¶] (D) Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subparagraph (A)....” (Stats. 2004, ch. 429, § 1, ch. 731, § 1, ch. 761, § 1.3.)
The court in Wallace added that because the residency requirement was a substantive element of the offense charged under former section 290, subdivision (a)(1)(D), the prosecution has the burden to prove the fact of the defendant’s California residency during the relevant time period beyond a reasonable doubt. (Wallace, supra, 176 Cal.App.4th at p. 1107.) In Wallace, the prosecution failed to present any evidence of defendant’s whereabouts at the relevant time, and the appellate court reversed the conviction. (Ibid.)
In the present case, the prosecution presented evidence that defendant lived in California in January 2005 when he visited his probation officer, but that he no longer lived in California in 2006, when he telephoned Detective Schindler from Louisiana. Thus, the prosecution established that defendant moved out of the state at some point between January 2005 and 2006, but there is no evidence in the record that defendant was living in California at any time after January 2005, including five days after his birthday on April 1, 2005. Because it was the prosecutor’s burden to prove this fact, we must reverse the conviction on count one. (Wallace, supra, 176 Cal.App.4th at p. 1107.)
DISPOSITION
Defendant’s conviction on count one for failing to register within five days of his birthday is reversed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., HULL, J.