Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P07CRF0187
SIMS, J.This is a highly unusual case involving defendant’s failure to register as a sex offender.
Defendant Dexter James Grant, Jr., appeals his conviction of failure to register as a sex offender after an address change. (Former Pen. Code, § 290, subd. (a)(1)(A).) Defendant contends (1) the trial court erroneously admitted into evidence defendant’s admission in Alameda County that he violated his probation due to the same failure to register for which he was tried in this case, (2) his right to a fair trial was undermined by the admission of evidence regarding the circumstances of his conviction for lewd and lascivious touching of a 15-year-old, (3) evidence of his motive to avoid properly registering as a sex offender was improperly admitted into evidence, (4) the trial court erred in failing to instruct sua sponte that defendant’s failure to register was excused by his reliance on the advice of his probation officer regarding when he had to register an address, (5) insufficient evidence supports his conviction, and (6) the cumulative effect of the errors he alleges denied him the right to a fair trial.
Undesignated statutory references are to the Penal Code. All references to section 290 are to this former version of the statute.
We reject defendant’s contentions and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prosecution
The El Dorado County District Attorney filed an information alleging that defendant failed to properly register as a sex offender between June 18, 2006, and April 17, 2007. Defendant pled not guilty, and the matter was tried to a jury.
The information further alleged that defendant failed to update his registration on April 17, 2007 (§ 290, subd. (a)(1)(D)), and drove while his license was suspended or revoked (Veh. Code, § 14601.1, subd. (a)). During trial, the prosecution dismissed the charge of failure to update registration. Defendant pled no contest to the Vehicle Code violation and was sentenced to 60 days in jail for the offense.
At trial, the prosecution adduced evidence showing that, in 2004, defendant pled no contest to lewd and lascivious touching of a 15-year-old (§ 288, subd. (c)(1)). The conviction required defendant to register as a sex offender. Following his 2004 conviction, defendant was supervised by Chantell Curl, who served as his probation officer in Oakland, California.
Defendant met with Curl on a monthly basis from 2005 through 2007. During that time, Curl became perplexed. Whenever defendant met with her, he was always dressed in trendy clothing, smelled good, and arrived in very nice cars – such as a late-model Cadillac sedan. However, defendant repeatedly registered as a transient, always professing to be homeless. The other transients supervised by Curl typically appeared in soiled, tattered clothing and lacked any kind of a car.
Defendant told Curl that he earned $8,000 a month by handling payroll at his father’s construction-glass company, but denied having any residence that he needed to register. He explained he was “a clean homeless person that stays with my friends.” At one point, defendant told Curl that his uncle told him that he did not need to register an address as long as he did not “stay at a specific place for more than 48 hours....”
Curl informed defendant that he was required to register any place at which he was living. The probation officer asked what parts of town he was staying around, and defendant responded he was a transient “in the Oakland Telegraph area.” Likewise, defendant listed his address as “transient – Telegraph Ave” on his registration forms from May 2006 to April 2007.
On April 17, 2007, defendant filled out his registration form to indicate that he had neither an address nor an occupation. As part of his form, defendant initialed his acknowledgment that: “Upon coming into, or when changing my residence address within a city and/or county in which I am residing, I must register or re-register in person within five (5) working days as a sex offender with the law enforcement agency having jurisdiction over my residence. [¶] If I change my registered address to a new address, either within the same jurisdiction or anywhere inside or outside the state, I must inform the last registering agency or agencies in person within five (5) working days before I leave. If I do not know my new residence address, I must later notify, by registered or certified mail, the last registering agency or agencies of the new address or transient location within five (5) working days of moving to the new address or location. [¶] If I am registered at a residence address and become a transient or if I am registered as a transient and move to a residence, I shall have five (5) working days within which to register with the law enforcement agency having jurisdiction over the new address or transient location. [¶] If I have no residence address, I must register in the jurisdiction where I am physically present as a transient within five (5) working days of becoming transient. Thereafter, I must update my registration information no less than once every 30 days with the law enforcement agency having jurisdiction over the place where I am physically present as a transient.”
After defendant’s meeting with Curl on April 17, 2007, several Oakland police officers clandestinely followed defendant’s Cadillac to a gated community in El Dorado Hills. Upon entering the gated community, defendant “began sort of erratic driving, which would be similar to counter-surveillance driving.” Defendant eventually stopped at a community mailbox before using a key to retrieve mail from a box. Defendant then “stood there and watched the neighborhood.”
The police officers got out of their cars and detained defendant pursuant to his probation conditions. Judy Wilson, a passenger in defendant’s car, was arrested on separate charges.
Defendant’s wallet contained $800 in cash. The car he had been driving contained the keys to a house located in the gated community at 4841 Village Green Drive and to two safes found at that address. Also inside the car was mail addressed to the Village Green house and an envelope containing $3,000 in cash.
Using defendant’s key, the police officers unlocked the door to the Village Green house. Photographs of defendant were found throughout the house – especially around the fireplace mantle in the living room. The officers found an unrecorded deed to the Village Green house indicating transfer of ownership from Elisa Jaramillo to defendant.
Another recorded deed showed that Jaramillo purchased the Village Green house before she conveyed it to defendant in the unrecorded deed.
The walk-in closet in the master bedroom contained men’s clothing – including a belt with “KP” inscribed on the buckle. “KP” is defendant’s moniker, and the house yielded a photograph showing defendant wearing the belt. Defendant’s name was also found on the following items in the master bedroom: a box of checks, a furniture receipt, a Brinks alarm installation receipt, and a California Highway Patrol citation. Another wallet belonging to defendant was found inside a dresser drawer. Elsewhere in the house, police officers found a letter signed by defendant as president and CEO of DR Entertainment. A photo album was found containing photos of women posing alongside defendant.
At no time between April 2006 and April 2007 did defendant register as a sex offender in El Dorado County.
In Alameda County Superior Court on June 20, 2007, defendant admitted violating his probation by failing to properly register as a sex offender on April 17, 2007. Immediately following his release from jail, defendant registered his address as 4841 Village Green Drive in El Dorado Hills.
As we have noted, an information was filed in El Dorado County alleging that defendant failed to properly register as a sex offender between June 18, 2006, and April 17, 2007.
Neighbors of the Village Green house testified that they saw defendant move into the house in June 2006. They often saw defendant at the house, and observed the house to be the frequent site of parties attended by guests in very expensive cars and scantily clad, young women bearing suitcases. One neighbor saw defendant at the house on a weekly basis for three to four days at a time. Another neighbor believed that the Village Green house was used for a prostitution ring.
Defense
Defendant testified on his own behalf, acknowledging his convictions of sections 266 (pimping) and 288, subdivision (c) (lewd and lascivious touching of a 15-year-old). Following conviction of lewd and lascivious touching, defendant reported to Curl as his probation officer. Curl urged him to register an address. When defendant did not register an address, Curl asked: “Where are you keeping all your clothes and where do you reside?” Defendant answered that he had clothes at the residences of his father, brother, mother, girlfriend, a friend named Rachel Alvarez, and in his car. Defendant acknowledged that Curl “was really on me about getting a place.”
Defendant explained that he ran “six different businesses, ” which included helping his father run Gold State Glazier in Sacramento, D & R Entertainment, an investment company that bought and fixed houses, and SP Entertainment. In 2007, defendant’s work on parties alone netted him $130,000 by featuring music and political celebrities. However, defendant “didn’t have a residence” in 2006 or 2007. He “had no need for a residence because you are at a night-club four days a week, work on construction in the daytime, and doing odd jobs on the weekend. What place do you need?”
As to the Village Green house, defendant denied owning it or living in it. Instead, defendant’s connection to the house was limited to helping his friend, Elisa Jaramillo, move in and fix up the house. Defendant and Jaramillo were “real estate adventurers” who planned to fix up Jaramillo’s three houses (including the Village Green house) and sell them for a profit.
In the Village Green house, defendant put up only a single picture, a large framed photograph of himself with his father. Defendant hung the photograph for Jaramillo because it was too heavy for her to lift. That picture, along with all others in the house, belonged to Jaramillo. Defendant slept at the Village Green house only once or twice. Defendant denied attending any of Jaramillo’s parties at the house, save for a single “family event.”
Defendant stated that he kept a few belongings at the Village Green house, consisting of a few pairs of tennis shoes, dress shirts, sports jackets, and suit coats. Defendant also parked his broken down Cadillac Escalade at the house.
Defendant stated that his sister, Shaterra Grant, wore the belts with his “KP” moniker on them. The defense called Shaterra, who testified that she always wore masculine clothing and asserted ownership of the male clothing in the master bedroom of the Village Green house. Her manner of dress often caused people to mistake her for her brother. Shaterra claimed to be responsible for twice-monthly parties at the house. Shaterra frequently drove the convertible Mercedes Benz owned by Jaramillo and the Cadillac owned by Judy Wilson. Although Shaterra always had a “really close” relationship with defendant, she did not know where he was staying when she visited the Village Green house.
Defendant testified that the personal items allegedly seized from the house – such as his wallet, cardholder, traffic citation, and checks – were planted there by the police, who moved them from the trunk of the car he had been driving.
When defendant admitted violating his probation in Alameda County, he did not believe that he was admitting to a violation based on having an unregistered address in El Dorado County. Instead, defendant viewed the problem as one of Curl having “screwed up” by giving him bad advice regarding his homelessness. Finally, defendant explained that he had refused to register an address in Oakland for fear that “Dirty Rob” – a rogue Oakland police officer – would start “kicking my door in and beating on me.”
Judy Wilson testified that she worked as a professional escort. She moved into the Village Green house in early 2006. Each month, Wilson paid between $500 and $1,000 in rent and utilities to Jaramillo. Although Wilson considered defendant to be a friend, she never knew where he lived and never thought to ask.
On April 17, 2007, Wilson drove defendant to the Oakland Police Department to meet with his probation officer. Wilson waited in the car for the 45 minutes that the meeting lasted. Defendant took over the driving on the way back to El Dorado Hills. At the gated community, Wilson gave defendant the entry code and asked him to get the mail for her because she was not feeling well. Wilson handed defendant her keys, including the mailbox key. In Wilson’s car, she had another set of keys from Jaramillo, which opened the mailbox, Village Green house, and two safes inside the house.
Jaramillo testified that she also worked as a professional escort and had been convicted of prostitution several times. Jaramillo had known defendant for seven years, from the time they both lived in Oakland.
Jaramillo explained that she bought the Village Green house for $770,000 with no down payment. She moved in during June 2006. She planned to remodel it with the help of defendant and sell it for a $150,000 profit. Jaramillo explained that the unrecorded deed to the Village Green house was intended to ensure that defendant would receive his fair share for his work on the house. Defendant helped Jaramillo by accepting deliveries at the Village Green house, such as the furniture and alarm system installation. Despite his participation in the remodeling and his receipt of deliveries, defendant never lived at the house.
Jaramillo asserted that all of the photos displayed in the Village Green house belonged to her. Defendant appeared in many of the photos because he was “a very personal friend....” However, defendant was never invited to a single one of the parties that Jaramillo hosted when she was home.
Jaramillo testified that she occupied the master bedroom and another bedroom upstairs. She explained that the walk-in closet in the master bedroom contained clothing belonging to her, Shaterra, and defendant. She had seen both defendant and Shaterra wear the belt with “KP” inscribed on it. Jaramillo laid claim to the men’s cologne bottles found in the master bathroom.
On cross-examination, Jaramillo acknowledged that she secured the loan for the Village Green house based on documentation showing her employment with defendant’s entertainment company. Jaramillo explained that she helped defendant throw parties, and in the process earned as much as $9,500 per month for her work.
The defense also called several neighbors of the Village Green house, who testified that they could not recall seeing defendant at the house with any regularity.
The jury convicted defendant of failure to properly register as a sex offender. (§ 290, subd. (a)(1).) As a result, the trial court sentenced defendant to the upper term of three years in state prison. Defendant timely filed a notice of appeal.
DISCUSSION
I
Defendant’s admission of a violation of probation in Alameda County
Defendant contends, “The Introduction of Evidence that [Defendant] Admitted to a Violation of Probation Based Upon the Same Acts Underlying the Instant Charges was Manifestly Improper and Violated Defendant’s Right Against Self Incrimination, to Effective Assistance of Counsel, and to a Fair Trial Guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.” For reasons that follow, we reject these arguments.
A
In June 2007, defendant admitted that he violated his probation in Alameda County by failing to register as a sex offender on April 17, 2007.
Shortly before the trial began in the present case, defense counsel moved to exclude defendant’s admission of his probation violation. Defense counsel made the motion on “fairness grounds.” The trial court denied the motion to exclude defendant’s admission of probation violation. Subsequently, the prosecution argued, in his opening statement:
“Ladies and gentlemen, the defendant is here on trial for violating... section 290. He’s admitted it in Alameda County, but he gets a trial here in El Dorado County. That is his right, and we are going to make sure he gets a fair one. Simple as that. We present all the evidence to you. You decide whether or not this man was required to register and whether or not he fulfilled that obligation here in El Dorado County.”
During trial, the prosecution called an Alameda County probation officer who was present during defendant’s hearing on the violation of probation. The prosecution also referred to the admission of probation violation when cross-examining two defense witnesses.
After the jury convicted defendant, the court denied his motion for a new trial based on ineffective assistance of counsel for failure to cite People v. Coleman (1975) 13 Cal.3d 867 (Coleman) in the motion to exclude the admission of defendant’s probation violation.
B
In Coleman, supra, 13 Cal.3d 867, defendant contended his federal constitutional right to avoid self-incrimination was violated by the conducting of a hearing on an allegation of probation violation for the same conduct that served as the basis for a separate criminal charge for which he had not yet been tried. (Id. at p. 871.) The high court recognized that probationers who wish to present mitigating evidence during probation violation hearings face a dilemma if their testimonies were subsequently admissible to prove criminal charges. The Coleman court explained that “the deterrent effect of concurrent criminal liability... serves to defeat the intelligent and just exercise of the court’s broad discretion in a probation revocation proceeding by impairing the accuracy and restricting the scope of the factfinding process. A probationer is by definition a convicted lawbreaker. Insofar as a probationer seeks at a revocation hearing to deny or contradict the evidence of a probation violation, he is generally at a disadvantage in terms of the credibility of his testimony. His testimony is likely to be more readily accepted, and hence more useful to the court, insofar as it adds to rather than detracts from the factual picture presented by the state, through the probationer’s explanation of his actions and account of the circumstances surrounding an alleged probation violation. But such mitigating evidence is just what is most likely to be withheld from the court by virtue of the probationer’s fear of self-incrimination, since mitigating evidence often involves damaging factual admissions coupled with more or less compelling moral excuses.” (Id. at p. 874.)
To avoid the necessity for probation violation hearings to follow the criminal trial concerning the same conduct, the Coleman court fashioned the remedy of granting defendants use immunity for their testimony during probation violation hearings. The Coleman court declared “as a judicial rule of evidence that henceforth upon timely objectionthe testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationer’s revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceeding are so clearly inconsistent as to warrant the trial court’s admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing.” (Coleman, supra, 13 Cal.3d at p. 889, italics added.)
Coleman does not address whether the fact of a bare admission of a violation of probation is inadmissible in a subsequent trial on new charges. (See Coleman, supra, 13 Cal.3d at p. 889.) Nonetheless, we conclude that the rule announced in Coleman does not require exclusion of a prior admission of a violation of probation that involved no testimony or explanation by a defendant. As the Coleman court explained, it sought to avoid “the danger of abuse by the state of its opportunity to coerce self-incriminatory testimony by scheduling the probation revocation hearing in advance of trial.” (Id. at pp. 888-889, italics added.) The Coleman court further noted, “Even where a violation is proven or admitted, a probationer has a due process right to explain any mitigating circumstances and argue that the ends of justice do not warrant revocation.” (Id. at p. 873.)
Applying the Coleman exclusionary rule in the present action would not threaten a defendant’s opportunity to contest an allegation of a probation violation or to tender an explanation for his or her actions. Defendant in this case offered no testimony or explanation during the violation of probation hearing. Thus, Coleman’s rationale for allowing a defendant to tender a defense or explanation at a violation of probation hearing without fear of later admission in the prosecution’s case-in-chief is not implicated this case.
Even if we assume for the sake of argument that Coleman requires exclusion of defendant’s prior admission of a violation of probation for failure to register as a sex offender from being introduced in the prosecution’s case-in-chief at trial, any error is manifestly harmless by any standard. This is because the court in Coleman ruled that testimony given by a probationer at his revocation hearing could be used “to impeach or rebut clearly inconsistent testimony which the probationer volunteers at his trial.” (Coleman, supra, 13 Cal.3d at p. 892.)
Here, given the extremely strong evidence against defendant, it is virtually certain that defendant would have to tell the jury his story by testifying--as he, in fact, did. Indeed, defendant’s trial attorney acknowledged, during the motion for new trial, that his “trial strategy from the outset was dependent on [defendant] taking the witness stand.” At the point at which defendant testified to deny any violation of the law for failure to register, his admission in the probation revocation proceeding would have become admissible for impeachment purposes and doubtless would have been admitted. The jury was certain to have learned of the admission, and any error in admitting the probation admission in the prosecution’s case in chief was harmless beyond a reasonable doubt on this record.
C
Defendant’s conviction need not be reversed on the ground that his trial attorney provided ineffective assistance of counsel for failure to cite Coleman when moving to exclude evidence of defendant’s admission of his violation of probation.
“A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 414.)
On this record, defendant cannot show prejudice. As we have explained, had trial counsel cited Coleman, defendant’s admission of the probation violation may have been excluded from the prosecution’s case in chief, but the jury would have learned of the admission when it was used to impeach defendant’s testimony. Accordingly, there is no reasonable probability of a different outcome had trial counsel cited Coleman to the trial court. (Ochoa, supra, 19 Cal.4th at p. 415.)
II
Admission of defendant’s two prior convictions for sex offenses
Defendant contends he received ineffective assistance of counsel for failure of his trial attorney to make a record of his motion to sanitize defendant’s prior convictions for pimping and for lewd and lascivious touching of a 15-year-old. Defendant further alleges that the trial court erred in admitting evidence of motive to avoid properly registering as a sex offender. We reject the contentions.
A
During trial, defense counsel moved to “sanitize” defendant’s prior convictions by seeking an order disallowing the prosecution from mentioning that the victim of defendant’s lewd and lascivious touching was 15 years old. The prosecutor countered that the exhibits offered into evidence regarding the prior conviction contained no information regarding the lewd and lascivious touching other than the elements of the crime, which necessarily involves a 14- or 15-year-old victim. The prosecutor objected to allowing defendant to testify regarding the facts underlying the conviction.
The trial court denied defendant’s motion to strike the victim’s age from the exhibits and denied defendant’s motion to present testimony regarding the facts underlying the conviction. The trial court also denied defense counsel’s motion to exclude evidence of one of defendant’s prior convictions.
B
“A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse of discretion. (E.g., People v. Williams (1997) 16 Cal.4th 153, 196-197 [‘[i]n determining the admissibility of evidence, the trial court has broad discretion.... On appeal, a trial court's decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion’]; accord, People v. Alvarez (1996) 14 Cal.4th 155, 203 [‘appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion’]; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885 [‘[w]e review a trial court's decision to admit or exclude evidence under the abuse of discretion standard’].)” (Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476.)
As the California Supreme Court has explained, “all relevant evidence is admissible at trial and that the trial court ‘has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.’ (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167; see Evid. Code, § 351.) Relevant evidence includes all ‘evidence... having any tendency in reason to prove... any disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210.) Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. ‘Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome [citation].”’ (People v. Waidla (2000) 22 Cal.4th 690, 724.)” (People v. Riggs (2008) 44 Cal.4th 248, 289-290.)
C
The Attorney General argues that defendant failed to preserve this issue for appeal. The record of objections by defense counsel to the admission of the prior convictions is not a model of clarity. Nonetheless, the record does sufficiently indicate that defense counsel moved to exclude evidence of the victim’s age from mention to the jury on the issue of defendant’s prior conviction of section 288, subdivision (c)(1); to exclude one of the defendant’s prior convictions as unnecessarily cumulative; and to exclude evidence of motive. The trial court denied defense counsel’s objections. Defendant has preserved the issue for appellate review, and we proceed to consider the merits of this argument.
Defendant contends the trial court erred in allowing evidence of his two prior convictions even though evidence of only one prior offense would have sufficed to prove that he was required to register under section 290, subdivision (a)(1)(A).
Defendant is correct insofar as he states that either of his convictions sufficed to establish his obligation to register as a sex offender. “A critical element of section 290 is conviction of an enumerated sex offense; there can be no violation of this statute absent sex offender status.” (People v. Cajina (2005) 127 Cal.App.4th 929, 933 (Cajina).) The Cajina court elaborated that “[t]here is a strong policy against depriving the People’s case of its persuasiveness and strength by forcing the prosecutor to accept stipulations that soften the impact of the evidence in its entirety. (People v. McClellan (1969) 71 Cal.2d 793, 802 (McClellan).) Thus, prosecutors are not required to stipulate to the existence of any elements of the crime they are trying to prove where the stipulation will impair the effectiveness of their case and foreclose their options to obtain convictions under differing theories. (People v. Robles (1970) 2 Cal.3d 205, 213.)” (Id. at p. 933.)
However, defendant errs in arguing that the particular offenses for which he must register cannot be disclosed to the jury. Defendant’s argument rests on an isolated statement in Cajina that “[i]n the case of a violation of section 290, we agree that the jury need not be informed of the defendant's specific sex offense conviction.” (Cajina, supra, 127 Cal.App.4th at p. 934.) The Cajina court explained this sentence by noting that “unless the jurors are informed that the defendant's duty to register derives from his status as a sex offender, they will be unaware of the public policy underlying the registration statute: assuring that persons convicted of sex offenses are readily available for police surveillance at all times because the Legislature has deemed them likely to commit similar offenses in the future.” (Cajina, supra, (2005) 127 Cal.App.4th at p. 934.)
In this case, the specific offenses for which defendant was convicted were relevant because they explained the basis for the concerns of defendant’s probation officer and the officer’s testimony that she would have conducted a site visit if defendant had been forthcoming about his address and house mates. Defendant’s probation officer testified that she would have wanted to visit defendant’s residence “if he would have come in and said: I live at 4841 Village Green Drive in El Dorado Hills, and I have four roommates and they are all young girls....” The probation officer would have done so “[f]or the simple facts of his conviction and these younger girls can’t – he can’t be around anyone under the age of 18.” The probation officer also would have been concerned if she would have learned that defendant was involved with an entertainment enterprise in the “sex industry” because of defendant’s pimping conviction.
Although each of defendant’s prior convictions by itself sufficed to trigger the registration requirement of section 290, both convictions were necessary to explain the extent of the probation officer’s concerns about defendant’s failure to register his residence address – especially if the residence served as a hub for scantily clad young women attending numerous parties. The prosecution’s questioning regarding the probation officer’s readiness to conduct a site visit was intended to show defendant’s motivation to hide his address from her.
Excluding either of defendant’s prior convictions would have unfairly hindered the prosecution’s ability to demonstrate that the concealment of defendant’s residence address was motivated by his desire to avoid a site visit by Curl to a location frequented by young women. “The rule that the state cannot be restricted by stipulations in presenting its case is particularly compelling when the likely effect of a stipulation that removes certain matters from the trial is to hamper a coherent presentation of the remaining issues. (McClellan, supra, 71 Cal.2d [793, ] 802; People v. Poon (1981) 125 Cal.App.3d 55, 79.) In a charge of violating section 290, the People must prove the defendant knew he or she was obligated to comply with an extremely stringent set of requirements, including annual, lifelong registration. If the jury is not informed why this defendant is subject to such a seemingly onerous obligation, the People, as the instant prosecutor aptly observed, would ‘look overbearing.’” (Cajina, supra, 127 Cal.App.4th at p. 933.)
Both of defendant’s prior convictions were relevant to the issue of defendant’s motivation to avoid registration. Accordingly, the trial court did not abuse its discretion in allowing the prosecution to introduce evidence of defendant’s two prior convictions at trial.
III
Evidence of motive
Defendant contends the trial court erred in admitting evidence of his motive to avoid properly registering his residence address as required by section 290, subdivision (a)(1)(A). Specifically, defendant argues that the evidence of motive was irrelevant and therefore inadmissible. We reject the argument.
At the outset of trial, the prosecution moved to introduce evidence of motive to avoid registration. Defense counsel objected, and the court ruled that evidence of motive was admissible. During trial, the prosecution asked a series of questions regarding information about whereabouts and activities provided by defendant to Curl, including the following:
“Q. Did [defendant] ever inform you that he was involved in an enterprise called DR Entertainment that involved young girls and the sex industry?
“A. [by Curl] No.
This question and answer are the only admitted evidence cited by defendant in his argument that he was prejudiced by admission of irrelevant evidence of motive.
Although motive is not an element of section 290, the jury was entitled to consider evidence of defendant’s motive to commit the offense. (§ 290, subd. (a)(1)(A); People v. Gonzales (1948) 87 Cal.App.2d 867, 877-878.) Moreover, the jury was properly instructed concerning evidence of motive.
The jury was instructed with CALCRIM No. 370 as follows: “The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
The specific question to which defendant now objects was posed during a portion of Curl’s testimony in which she explained that she would have been interested to know if defendant was associating with underage women or running a prostitution ring because of defendant’s convictions for pimping and a sexual offense against a minor. Had defendant disclosed his running of DR Entertainment and his address at the Village Green house, Curl would have “[g]one out to the home and met these girls....” Defendant’s motive to conceal his residence address was relevant to the question of whether he sought to thwart the sex offender registration requirement to which he was subject.
Defendant further contends “‘evidence’ that appellant was running a prostitution ring of under age [sic] girls” was not relevant. However, the record shows that the trial court excluded this evidence. The prosecution sought to introduce evidence of notations in spiral notebooks found in the Village Green house that recorded internet-posted solicitations for sex. The prosecution sought to introduce them to establish defendant’s motive to avoid registration because “defendant was using this house, at a minimum, to house girls that he was running as prostitutes, whether it be on Craigslist or whatever, who knows what website that he was posting these things on. [¶]... [¶] I think it all ties into the totality of the theory of my motive, and that being that Dexter Grant did not want law enforcement to know where he was because of the things that he was engaging in this house and because of the young women that he was associating with in this house.”
The trial court excluded the notebooks, explaining: “I am not prepared to jump to the conclusion that there is any evidence that he is hiding a prostitution ring taking place on Village Green Drive.”
To the extent that defendant’s argument regarding evidence of motive is intended to encompass more than this evidence, it is forfeited for failure to cite to the record where such evidence might be found. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [failure to cite to the record forfeits the claim of error].)
Defendant’s reference to one juror’s expression of sympathy for the neighbors who testified does not refer to evidence of motive.
Defendant has not established any error in the admission of evidence of his motive to avoid properly registering as a sex offender. Accordingly, the trial court did not abuse its discretion in admitting the evidence.
IV
Failure to instruct on “entrapment by estoppel”
Defendant contends his federal constitutional rights to a fair trial were denied by the trial court’s failure to instruct sua sponte on the defense of “entrapment by estoppel.” We disagree.
A
Defendant testified that Curl, his probation officer, told him that section 290 required registration of his residence address only if he lived there for five or more days. Specifically, defendant claimed that he had been advised: “As long as I never stayed at one place more than five days, I was in compliance because I didn’t live there longer than five days.”
B
A defendant is entitled to have the trial court instruct the jury on a defense supported by substantial evidence. “Even absent a request, the trial court must instruct on the general principles of law applicable to the case. ([People v.] Koontz [(2002)] 27 Cal.4th [1041, ] 1085.) The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court must give instructions on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. (Ibid.) Evidence is ‘substantial’ only if a reasonable jury could find it persuasive. (People v. Hagen (1998) 19 Cal.4th 652, 672.) The trial court's determination of whether an instruction should be given must be made without reference to the credibility of the evidence. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)” (People v. Young (2005) 34 Cal.4th 1149, 1200-1201.)
Defendant argues that the trial court had a duty to instruct sua sponte on the defense of entrapment by estoppel. Specifically, he asserts that “a probationer is entitled to rely on the word of his probation officer about what he must do to comply with the terms of his probation: registration under §290 was one of those terms. [¶] The state may not penalize a citizen for relying upon assurances as to the state of the law.” Based on the advice defendant purportedly received from Curl regarding the need to register only after living at an address for more than five days, he now argues that the trial court erred by failing to instruct sua sponte on the defense of entrapment by estoppel.
As the California Supreme Court has explained, “Entrapment by estoppel, based on principles of federal due process, has been recognized by the federal courts and in some sister states. The defense evolved from three United States Supreme Court opinions, although none used the term ‘entrapment by estoppel.’” (People v. Chacon (2007) 40 Cal.4th 558, 567-568, citing United States v. Pennsylvania Chem. Corp. (1973) 411 U.S. 655 [36 L.Ed.2d 567]; Cox v. Louisiana (1965) 379 U.S. 559 [13 L.Ed.2d 487]; Raley v. Ohio (1959) 360 U.S. 423 [3 L.Ed.2d 1344].)
Our high court went on to note that “[f]ederal cases applying the entrapment by estoppel defense, while varying slightly in their formulation, rest on the premise that the government may not actively provide assurances that conduct is lawful, then prosecute those who act in reasonable reliance on those assurances. Under these limited circumstances, fundamental fairness supports the defense, even when the prosecution can prove each element of the crime.
“Courts have cautioned that the defense is narrowly circumscribed. (See e.g., U.S. v. Spires (5th Cir. 1996) 79 F.3d 464, 466.) [‘The defense is a narrow exception to the general rule that ignorance of the law is no excuse....’]; U.S. v. Corso (2d Cir. 1994) 20 F.3d 521, 528 [‘Judicial decisions indicate great caution should be exercised when it comes to the application of the defense’]; U.S. v. Howell (7th Cir. 1994) 37 F.3d 1197, 1204 [‘Entrapment by estoppel... is a defense that is rarely available’]; U.S. v. Smith (1st Cir. 1991) 940 F.2d 710, 714 [entrapment by estoppel is ‘recognized as applicable under certain, relatively narrow, circumstances’].)” (People v. Chacon, supra, 40 Cal.4th at p. 568-569, footnote omitted.)
A defendant’s candor is an integral part of the defense, and must be shown before an instruction on entrapment by estoppel must be given. (People v. Young, supra, 34 Cal.4th at pp. 1200-1201.) “In order to establish entrapment by estoppel, a defendant must show that (1) ‘an authorized government official, ’ ‘empowered to render the claimed erroneous advice, ’ [United States v.] Brebner [(9th Cir. 1991)] 951 F.2d [1017, ] 1024, 1027, (2) ‘who has been made aware of all the relevant historical facts, ’ [United States v.] Tallmadge [(9th Cir. 1987)] 829 F.2d [767, ] 774, (3) ‘affirmatively told him the proscribed conduct was permissible, ’ [United States v.] Ramirez-Valencia [(9th Cir. 2000)] 202 F.3d [1106, ] 1109, (4) that ‘he relied on the false information, ’ Tallmadge, 829 F.2d at 774, and (5) ‘that his reliance was reasonable.’ Id. As to this last element, we have stated that ‘[a] defendant's reliance is reasonable if “a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.”’ Ramirez-Valencia, 202 F.3d at 1109 (quoting United States v. Lansing, 424 F.2d 225, 227 (9th Cir. 1970)).” (United States v. Batterjee (9th Cir. 2004) 361 F.3d 1210, 1216-1217, footnote omitted.)
The defense of entrapment by estoppel can only be asserted by a defendant who is blameless for receiving incorrect, official advice. “Underlying the concept of entrapment by estoppel is the premise that before receiving official advice, the Defendant must have presented the government official with ‘all the relevant historical facts.’ United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987). If the party asserting the equitable defense has failed to be forthcoming, has presented only half the story, or worse yet, misrepresented the true facts, and those omitted or erroneous facts would have been material, he cannot claim to have been misled by a government official he himself misled.” (United States v. Lemieux (D. Maine 2008) 550 F.Supp.2d 127, 130.)
C
The defense of entrapment by estoppel was unavailable to defendant because he proved to be anything but forthright and forthcoming. Far from telling even half the story, defendant actively concealed every aspect of his residence at the Village Green house from his probation officer.
In the face of Curl’s repeated attempts to ascertain defendant’s residence by asking where he kept his clothes, he answered that he left his clothes with a myriad of friends and relatives but failed to mention his clothes in the master bedroom of the Village Green house. Defendant repeatedly indicated that he had no residence at all, claiming to be a “clean homeless” person in the area of Telegraph Avenue in Oakland. Defendant thus deflected attention from the Village Green house several counties away. Indeed, defendant’s own testimony established his intent to evade police monitoring by presenting the story of not wanting to have an apartment where “Dirty Rob” could find and beat him.
Although defendant kept his clothes, cologne, personal photos, and Cadillac Escalade at the Village Green house, he attempted to conceal any overt connection to the house. Thus, defendant did not record the deed by which Jaramillo conveyed the property to him. On the way home from his probation officer’s meeting in Oakland, defendant even took counter-surveillance measures upon entering the gated community to which he had the entry code and a key to the mailbox.
In an attempt to make his homeless plight more plausible, defendant repeatedly claimed to have no job. Instead--by his own admission--defendant was running six businesses and earning $130,000 a year in 2007. Jaramillo testified that she always paid the mortgage on the Village Green house. But she also admitted that she was able to secure the mortgage for the house by relying on proof of income from defendant’s entertainment company. She received as much as $9,500 a month for working at defendant’s parties. Jaramillo needed only about half that amount to pay the mortgage on the Village Green house. Thus, defendant’s concealment of his ties to the property extended beyond the unrecorded deed to include paying the mortgage through Jaramillo.
Defendant’s efforts to hide any connection to the Village Green house necessarily meant that he failed to be sufficiently honest and forthcoming with Curl to avail himself of the defense of entrapment by estoppel. (Cf. People v. Young, supra, 34 Cal.4th at pp. 1200-1201.) Defendant’s own testimony undermined any semblance of candor required to assert the defense. Accordingly, the trial court did not err in failing to instruct sua sponte on the entrapment by estoppel.
V
Sufficiency of the evidence
Defendant contends insufficient evidence supports his conviction of section 290, subdivision (a)(1)(A), because the prosecution failed to prove that he spent more than five consecutive workdays at the Village Green house. The contention has no merit.
A
The statutory requirements of section 290 constitute a question of law. “In addressing questions of statutory interpretation and application, we apply a de novo review. ‘The proper interpretation of a statute is a question of law for our independent determination.’” (People v. Hernandez (2009) 177 Cal.App.4th 1182, 1187, quoting People v. Salcido (2008) 166 Cal.App.4th 1303, 1311.) By contrast, the determination of whether sufficient evidence supports the judgment is reviewed under the deferential substantial evidence standard. (Ibid.) Under this standard, “‘“‘“[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’”’ (People v. Halvorsen [(2007)] 42 Cal.4th [379, ] 419.) The standard is the same under the state and federal due process clauses. (People v. Berryman (1993) 6 Cal.4th 1048, 1082-1083.) “We presume ‘“in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’” (People v. Prince (2007) 40 Cal.4th 1179, 1251.)’” (People v. Thompson (May 24, 2010) 49 Cal.4th 79 [109 Cal.Rptr.3d 549, 585].)
B
In asserting insufficiency of the evidence, defendant asserts that former section 290, subdivision (a)(1)(A), required him to register an address only after he had been living there for “five consecutive working days, ” which defendant asserts to include only “weekdays not including federal and state holidays.” (Emphasis omitted.) Under defendant’s reading of the statute, he could not have acquired a residence even if he lived in the same house for years – so long as he took an overnight trip on Fridays. Weekends not counting, in his view, toward the establishment of a residence, a four-day workweek stay would never trigger the registration requirement. Defendant is mistaken.
See footnote 1, ante [setting forth the pertinent text of former section 290].
Subdivision (a)(1)(A) of section 290 required registration of a sex offender “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.” Thus, the five-day requirement refers to the time limit for a convicted sex offender to register rather than defining the number of consecutive days required to establish a residence. Subdivision (a)(1)(C)(vii) made clear that establishing a residence required nothing more than “regularly” staying at a location. Indeed, that subdivision expressly provided that a residence was acquired “regardless of the number of days or nights spent there....” (Italics added.) Consequently, defendant’s assertion that he could acquire a residence at the Village Green house only after staying there for five consecutive weekdays is contrary to the plain meaning of section 290, subdivision (a)(1)(C)(vii).
Defendant’s cited case of People v. Balkin (2006) 145 Cal.App.4th 487 does not compel a different conclusion. Balkin involved a conviction for failing to register as a sex offender in Los Angeles. (Id. at pp. 488, 490.) Other than the defendant’s physical presence in Los Angeles at the time of his arrest, the only indication of his connection to the locale was an address at which he received mail. (Id. at p. 490.) The Balkin court reversed the conviction, holding that “there was no evidence defendant was a ‘transient’ within the meaning of section 290, subdivision (a)(1)(C).” The sole evidence was that he had a mailing address. But there was no evidence to establish when defendant secured that address or moved into the city or county – it could have been one day prior to his arrest or more than five days. (Id. at pp. 492-493.)
Balkin does not, as defendant contends, require a five-consecutive-day stay at an address to acquire residence. Instead, the Balkin court reversed because the evidence failed to show that defendant allowed more than five days to lapse after establishing residence in Los Angeles. (Balkin, supra, 145 Cal.App.4th at pp. 492-493.) Nothing in Balkin establishes a minimum amount of time required to acquire a residence before the five-day deadline to register commences.
In this case, the five-day deadline for defendant to register his Village Green house as his residence commenced when he moved into the house on Father’s Day in 2006. As his neighbor testified, moving trucks heralded the advent of defendant as the new neighbor. That defendant may thereafter have been an irregular or sporadic inhabitant of the Village Green house did not vitiate its status as his residence. He habitually returned to the place where he kept his car in the garage, his clothes in the closet, his wallet and checkbook in the bedroom, his colognes in the bathroom, and his personal photos on the fireplace mantle. The unrecorded deed to the house showed that defendant did more than regularly stay there, he was the owner of his residence. He even acted as a homeowner on Village Green Drive, paying for delivery of furniture and signing for the installation of a home alarm system.
The evidence overwhelmingly showed the Village Green house to have been a place where he “regularly” resided so that he was required to register that address under section 290, subdivision (a)(1)(A).
VI
Cumulative Error
On the last page of his reply brief, defendant asserts cumulative error in the conclusion to his brief. Having rejected all of his claims of error, we find no prejudice – singly or cumulatively – that warrants reversal. (People v. Jablonski (2006) 37 Cal.4th 774, 832.)
DISPOSITION
The judgment is affirmed.
I concur in the judgment and in the opinion except as to part IB of the Discussion, as to which I concur in the result:
BLEASE, Acting P. J.
I concur in the judgment but must express a reservation regarding the opinion’s application of the Supreme Court’s decision in People v. Coleman (1975) 13 Cal.3d 867 (Coleman). I agree that Coleman’s rationale is not implicated in this case. Coleman protects a defendant’s right to testify or offer an explanation in a probation revocation hearing held prior to trial of criminal charges arising from the same facts. The Supreme Court “declare[d] as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges....” (Id. at p. 889, italics added.) Here, defendant did not testify and thus Coleman does not apply.
However, I am not certain that testimony admitted in violation of Coleman’s proscription is rendered harmless by defendant’s subsequent testimony in the criminal trial, even if defendant’s decision to testify could be anticipated, given the compelling evidence against him. I am wary of assessing prejudice based on speculation about a defendant’s trial strategy, though in the present case such speculation was unnecessary in light of trial counsel’s disclosure regarding the strategy during the hearing on his motion for a new trial. But in any event, a prejudice analysis is unnecessary given that Coleman’s rule is not applicable.
With this mild reservation, I concur in the judgment.
RAYE, J.
At the time of defendant’s offense in 2007, section 290 provided in pertinent part:
“(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while residing in California, or while attending school or working in California, as described in subparagraph (G), 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.
“[¶]... [¶]
“[(C)](ii) A transient who moves to a residence shall have five working days within which to register at that address, in accordance with subparagraph (A) of paragraph (1) of subdivision (a). A person registered at a residence address in accordance with subparagraph (A) of paragraph (1) of subdivision (a), who becomes transient shall have five working days within which to reregister as a transient in accordance with clause (i).
“[¶]... [¶]
“(vii) For purposes of this section, ‘transient’ means a person who has no residence. ‘Residence’ means 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.” (Italics added.)