Opinion
C081159
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ROBERT BRUSIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62140914)
In January 1992, defendant Matthew Robert Brusin was convicted of violating Penal Code section 288, resulting in a lifelong sexual offender registration requirement pursuant to section 290. In April 1993, the trial court granted defendant permission to move to Guam. In May 2015, defendant traveled to California on a round trip ticket, with his return scheduled in October 2015. On July 22, 2015, he was arrested for failure to register as a sex offender. In November 2015, defendant pled no contest to failure to register as a sex offender within five days of release from incarceration. (§ 290.015.) On appeal, defendant contends the trial court erred in denying his section 995 motion to dismiss the information. We affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Case No. 62140252 (First Case)
In August 2015, defendant was charged with felony failure to register as a sex offender from May 26 to July 22, 2015 and felony failure to register multiple residences from May 26 to July 22, 2015. It was further alleged defendant had a prior strike. (§§ 667, subds. (b)-(i), 1170.12.)
A preliminary hearing was held on September 9 and 10, 2015. Detective Ken Ferreira testified he first investigated defendant in April 2010, based on a tip that defendant was residing at the Placer County home of his parents, Donna S. and Ron S. At the time, Ferreira confirmed via the California Sex and Arson Registry (Registry) that defendant was not registered as a sex offender in California. Ferreira also confirmed with the U.S. Marshall's Office that defendant was not registered in Guam. Ferreira spoke with defendant at his parents' house, and he said he had been at his parents' house for three weeks but was returning to Guam the next day. Defendant and Donna each told Ferreira he was leaving in the next 30 minutes. Defendant had not registered as a sex offender because he was leaving soon and he feared repercussions for his parents if it became known a registered sex offender was living there.
Ferreira read to defendant the sex offender registration requirements, as detailed in the notification and registration requirement document. Ferreira advised defendant that he was required to register as a sex offender: (1) within five days of coming into a city or county, or changing an address within a city; (2) update his registration annually within five working days of his birthday; and (3) register each address at which he regularly resides, regardless of how many days or nights he spends at the address. Ferreira further advised defendant he would have to register if he remained in California for over five working days. Ferreira also informed defendant of his understanding that any eligible person who did not reside in California had to register as a sex offender within 10 days of entering the state. Defendant refused to initial and sign the admonishment, stating he wanted an attorney present.
In 2014, Ferreira spoke with detectives from the Fremont Police Department. The detectives believed defendant was residing or spending time at the Fremont home of Jane N. and Eric N., defendant's sister and brother-in-law. Ferreira told the detectives he believed defendant resided with Donna and Ron and "may be spending time in Guam as well."
Ferreira next visited the house of defendant's parents on July 22, 2015. Donna said defendant had been staying there for four days but had a ticket to return to Guam, where he lived in a hotel. According to Donna, defendant arrived in California for her birthday in May 2015 and had been staying in Reno, Oregon, and the Bay Area, including with Jane and Eric in Fremont. Defendant was helping Jane redo the floors. Donna told Ferreira it was unfair defendant had to register and asked that he not arrest defendant. Defendant was at Donna's house frequently enough that she knew he did not "go[] cruising for victims." When Ferreira asked Donna why defendant did not just register as a transient, Donna responded, that "wouldn't be true," because he could live at her house or Jane's home. Donna said defendant did not have an address but stayed with friends and traveled between places in a pickup truck. Defendant did not work in California but had a business in Guam importing dried fruits. Defendant had recently had surgeries due to poor health and had been diagnosed as a diabetic.
Jane told Ferreira that defendant lives in Guam but stayed with her "on and off," during his trip, for a few days each time. Defendant would stay in their travel trailer, which he parked in her driveway. Jane confirmed defendant was helping refinish her home's floors. Eric said defendant had stayed with them for a total of 12 days during this trip and typically comes to California every 18 months.
Defendant told Ferreira he lived in Guam but had come to California in May 2015 for Donna's birthday. During this trip, he had spent time in Reno, Oregon, and the Bay Area. Defendant showed Ferreira a gas receipt for Nevada. Defendant had been at his parents' house for four working days (six days total). Defendant told Ferreira he had a return ticket for Guam in October, but he could change the ticket and planned to leave in 30 minutes.
Ferreira confirmed in the Registry that defendant had never registered within five days of his birthday. Defendant also had never registered as a transient or as having a California residence. The most recent address for defendant in the Registry was from his 2005 exit registration, when he listed an address in Guam.
Ferreira arrested defendant on July 22, 2015. He was released the next day, but, as of the September 2015 preliminary hearing, he had not registered as a sex offender.
Eric testified defendant had lived in Guam since April 1993. He used to have a house in Guam but now only had a post office box. Defendant had given law enforcement officers Eric's address when he was released from jail in 1993, but he only stayed with Eric and Jane for a few days before leaving for Guam. In 2004, Eric learned his address was on the sex offender registry database list, but it was removed after he attested defendant did not live there. Between May and July 2015, defendant stayed with them sporadically for two to three days at a time, for a total of 12 days. Defendant also stayed with Donna and friends, including a friend in Fresno. Eric testified defendant did not reside with them between May and July 2015, by which he meant defendant was not renting a part of his house or living there permanently.
On September 10, 2015, after holding a preliminary hearing, the magistrate found there was insufficient evidence to hold defendant to answer and dismissed the complaint.
Case No. 62120914 (Second Case)
On September 22, 2015, the prosecutor filed a second criminal complaint against defendant alleging felony failure to register as a sex offender, felony failure to register as a sex offender at multiple residences, felony failure to register as a sex offender within five working days of entering California, felony failure to register as a sex offender within five days of release from incarceration, and misdemeanor failure to update registration every 30 days as a person without a residence. Counts one through three and five allegedly occurred from May 26 to July 22, 2015 and count four allegedly took place on July 22, 2015. It was also alleged defendant had a prior strike.
On September 25, 2015, defendant moved to dismiss the complaint pursuant to section 1385. He argued he was being subjected to retaliatory prosecution, since the complaint contained two charges identical to those which had been dismissed in the first case and added three new charges without the discovery of any additional evidence. The magistrate denied defendant's motion on September 28, 2015, reasoning the presumption of vindictive prosecution does not arise prior to trial. In addition, there was no evidence of vindictiveness, since the prosecution may add charges at the time the information is filed based on proof. Also, the additional charges did not increase punishment because they were essentially alternate theories of the same charge.
During the preliminary hearing, the parties stipulated the magistrate could consider the transcript and exhibits from the preliminary hearing in the first case. In addition, the magistrate heard testimony from Donna, Ferreira, and Ron.
Donna testified defendant had lived in Guam for 23 years and currently lived in a residence hotel. He had "give[n] up" his house there and shipped "several big boxes" of his belongings to keep at Donna's home. She talked to him on Skype and sent him money every month as an "investment" in his import business. Donna had visited defendant five times in Guam, including when he received his bachelor's degree and MBA. As a student, defendant had received in-state fees because he was considered a resident.
Donna paid for defendant's round trip ticket to travel to California in May 2015 for her 80th birthday, with a return set for October 2015. Defendant's most recent trip to California was in 2014, when he came to help scatter his brother's ashes and then returned to Guam. Defendant would only stay with Donna and Ron for a few days and would then leave California. Defendant always uses their guest room, a converted apartment on the top floor with its own entrance from outside the house. During defendant's 2015 trip, he only stayed with Donna and Ron from May 25 through 28, for 90 minutes in June, and from July 19 through July 22. No one else stayed in the guest apartment between May 25 and July 22, 2015.
Donna and Ron also allow defendant to use their only pickup truck whenever he stays and he had exclusive use of the truck between May 25 and July 22, 2015. During this period, defendant drove 5,000 miles. According to Donna, defendant drove so much because he left the state every five days, in an effort to comply with his understanding of the sex offender registration requirements. Donna testified the truck was never at her house during the period of May 25 to July 22, 2015, unless defendant was there, too.
Donna testified that when Ferreira arrested defendant on July 22, she knew he was intending on leaving her house and had a bag packed. She was not "sure when he was going back to Guam," but she knew he was not going to return on July 22. Defendant wanted to return to Guam to oversee the first delivery of dried fruit for his business, which took place a few days before the preliminary hearing.
Ferreira testified he drove by Donna and Ron's residence twice each day he was working (Tuesday through Friday) between May 25 and July 22, 2015. He saw the pickup truck outside Donna's house "most every day," except for a two-week period.
The magistrate found there was not sufficient evidence to hold defendant to answer against counts alleging felony failure to register and felony failure to register at multiple residences. However, there was sufficient evidence to hold defendant to answer on the counts alleging felony failure to register as a sex offender within five working days of entering California and felony failure to register as a sex offender within five days of release from incarceration. This was based on evidence that defendant: (1) was a temporary resident, rather than just a visitor, (2) had knowledge of his duty to register, and (3) had failed to register as a transient and when he was released from custody. The magistrate also certified the misdemeanor count of failure to update registration every 30 days.
In making its decision, the magistrate noted "some parts" of Donna's testimony were "contradictory" and not "believable." The magistrate was also concerned because, during Donna's testimony, it appeared she occasionally looked to defendant, who would nod yes or no. The magistrate was also "troubled with what appears to be a very clear attempt by [defendant] to avoid any registration requirements to come into play, leaving [California] every four days."
On October 8, 2015, the prosecution filed an information with the same felony allegations as in the September 22, 2015, complaint including the prior strike. The first three counts allegedly took place from May 26 to July 22, 2015 and the last count allegedly occurred on July 22, 2015.
On October 27, 2015, defendant filed a motion to dismiss under section 995, arguing the first two counts had already been dismissed twice. In addition, defendant argued the remaining counts should be dismissed because there was insufficient evidence defendant was a resident of California and visiting out-of-state residents are not required to register. In the alternative, the last two counts should be dismissed because there was insufficient evidence that defendant knew he had to register.
On November 4, 2015, the trial court dismissed the first two counts, pursuant to the parties' agreement that section 1387 applied. On November 16, 2015, the trial court denied defendant's section 995 motion, finding there was sufficient evidence shown during the preliminary hearing that defendant was residing in California and therefore required to register under section 290.
Defendant filed a timely appeal and obtained a certificate of probable cause.
DISCUSSION
I
Sufficient Evidence To Conclude Defendant Was Resident Of California
During a preliminary hearing, the role of the magistrate is to determine whether there is "sufficient cause" to believe defendant is guilty of the charged offense. (§§ 871, 872, subd. (a).) " '[S]ufficient cause' is generally equivalent to 'reasonable and probable cause,' that is, such a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." (People v. Uhlemann (1973) 9 Cal.3d 662, 667.)
" 'The purpose of a motion to set aside the accusatory pleading under . . . section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other.' " (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269.) " ' "An information will not be set aside . . . if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." ' " (People v. Arjon (2004) 119 Cal.App.4th 185, 193.) On appeal following the denial of a section 995 motion, we review the preliminary hearing magistrate's determination directly and disregard the superior court's ruling. (People v. Bautista (2014) 223 Cal.App.4th 1096, 1101.) "Insofar as the [section 995] motion rests on issues of statutory interpretation, our review is de novo. [Citation.] Insofar as it rests on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendants to answer." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.)
Defendant contends the evidence was insufficient to establish he was a resident of California and knew he was required to register as a sex offender. According to defendant, there was substantial evidence he was a resident of Guam.
Section 290 requires a person who has been convicted of violating an enumerated sex crime, including section 288, to register with the appropriate law enforcement official "for the rest of his or her life while residing in California, or while attending school or working in California." (§ 290, subd. (b).) Section 290.015 requires a person required to register as a sex offender to register upon release from incarceration.
Under section 290.011, subdivision (a) a person required to register as a sex offender who is living as a transient must register every 30 days, regardless of the length of time he has been physically present in the particular jurisdiction in which he registers. Section 290.011, subdivision (g) defines "transient" as "a person who has no residence," and "Residence" as "one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." The definition is "broad, with no limitations as to a set amount of time or time of day for a finding of residence." (People v. Gonzales (2010) 183 Cal.App.4th 24, 37; see also People v. McCleod (1997) 55 Cal.App.4th 1205, 1217 [a trial court need not provide the jury with a special definition of "residence" with respect to § 290 charge, since the term is "easily understood by persons of ordinary intelligence as 'connot[ing] more than passing through or presence for a limited visit' "].) This broad definition is consistent with the purpose of mandatory sex registration, namely, "to make sex offenders deemed likely to recidivate readily available for police surveillance and 'to notify members of the public of the existence and location of sex offenders so they can take protective measures.' " (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 379; accord, Wright v. Superior Court (1997) 15 Cal.4th 521, 527; People v. North (2003) 112 Cal.App.4th 621, 628.)
Despite defendant's contention he was merely a visitor, there was sufficient evidence to support the magistrate's finding defendant was a resident of California for purposes of the sex offender registration requirements. Although Donna testified defendant had lived in Guam for 23 years and attended a university there, he no longer had a home in Guam. He used a post office box as his address and stayed in a residence hotel, indicating he did not have a permanent home in Guam. In addition, defendant kept "several big boxes" of his belongings at Donna and Ron's house.
Defendant's trip to California was scheduled from May 2015 to October 2015. Donna testified defendant's ticket was changeable and he intended to return earlier than October, but she did not know when, and there was no evidence the ticket had been changed. Despite defendant's statement to Detective Ferreira on July 22, 2015, that he was leaving in 30 minutes, Donna testified he was not leaving that day. Moreover, in 2010 defendant said the same thing to Ferreira, and it would be an incredible coincidence that defendant had twice scheduled a flight within 30 minutes of the police's arrival.
In addition, there was evidence defendant stayed regularly in Donna and Ron's guest room during his trip. Despite Donna's testimony that defendant stayed there no more than nine days, Ferreira testified he saw the pickup truck twice outside the home "most every day" during his commute to work four days a week between May 25 and July 22, 2015, except for a two-week period. According to Donna, defendant had exclusive use of the truck and it was never at her house unless defendant was there. Drawing all reasonable inferences in favor of the sufficiency of the information (Lexin v. Superior Court, supra, 47 Cal.4th at p. 1072), we conclude the evidence supports a finding that there is a " ' "rational ground for assuming the possibility" ' " (People v. Arjon, supra, 119 Cal.App.4th at p. 193) that defendant was a resident of California or a transient without a specific residence.
As we have described, our review is limited to whether there was probable cause to satisfy each of the four elements of the criminal failure to register charges. Briefly, those elements are: (1) a previous conviction for an offense requiring registration; (2) a California resident; (3) actual knowledge of the requirement; and (4) willful failure to register or update registration. (See CALCRIM No. 1170.) Although in oral argument appellant's counsel suggested there is a threshold (or "gatekeeper") determination for the court to make--that defendant was subject to the registration requirements--and this determination should be made before his case went to the jury for findings on the elements and eventual verdict, this view is incorrect. All of the elements are for the jury to determine, as long as there is probable cause to support them. --------
II
Sufficient Evidence To Conclude Defendant Knew His Registration Obligation
Because a defendant can only be guilty of a willful failure to register as a sex offender, he must have actual knowledge of his duty to register. (People v. Garcia (2001) 25 Cal.4th 744, 752.) "A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (Ibid.)
Detective Ferreira admonished defendant in 2010 regarding his registration requirements as detailed in the notification and registration requirement document, including the requirement to register within five days of coming into a city or county. Although defendant refused to initial the admonishment and had the erroneous belief he could avoid the registration requirement by leaving California every five days (which itself is knowledge of the registration requirement), his knowledge of the requirement can be inferred from Ferreira's notice in 2010. In sum, the trial court did not err in denying defendant's motion.
III
Vindictive Prosecution
Finally, defendant contends the trial court erred in denying his motion to dismiss the information in the second case based on vindictive prosecution. Relying on Twiggs v. Superior Court (1983) 34 Cal.3d 360, defendant argues the information gives rise to a presumption of vindictive prosecution because it contained two additional felony charges. Defendant further contends the prosecution was in fact vindictive, since no new facts were adduced during the preliminary hearing in the second case that would have led the prosecution to add new charges. Defendant also argues there was no legitimate government interest in adding the charges, aside from vindictiveness.
Defendant's reliance on Twiggs is misplaced. In Twiggs, the defendant's first trial ended in a mistrial. The Twiggs court concluded the presumption of vindictiveness arose since, two days after the defendant refused an offered plea bargain and invoked his right to a retrial, the prosecutor filed an amended information adding five sentence enhancements. (Twiggs v. Superior Court, supra, 34 Cal.3d at pp. 363-365, 375.)
Here, by contrast, the prosecution filed an information with two additional felony charges before any trial took place. No presumption of vindictiveness arises in the pretrial situation, since, at this stage, "the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins--and certainly by the time a conviction has been obtained--it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision." (United States v. Goodwin (1982) 457 U.S. 368, 372, 381 [73 L.Ed.2d 74, 79-80, 85]; accord, People v. Puentes (2010) 190 Cal.App.4th 1480, 1484.)
Where vindictiveness is not presumed, a defendant must present evidence showing the " 'prosecutor's charging decision was motivated by a desire to punish [the defendant] for doing something the law plainly allows him to do.' " (People v. Bracey (1994) 21 Cal.App.4th 1532, 1549, quoting United States v. Goodwin, supra, 457 U.S. at p. 384 .) Defendant has failed to do so. The evidence at the preliminary hearing in the first case, which was dismissed, showed there was sufficient cause to believe defendant was a resident in California, and, "unless the magistrate makes factual findings to the contrary, the prosecutor may amend the information after the preliminary hearing to charge any offense shown by the evidence adduced at the preliminary hearing provided the new crime is transactionally related to the crimes for which the defendant has previously been held to answer." (People v. Manning (1982) 133 Cal.App.3d 159, 165; see also § 739 [permitting the prosecution to file an information against a defendant charging him with "any offense or offenses shown by the evidence taken before the magistrate to have been committed"].) Thus, the information in the second case was filed based on findings from the first case.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.