Opinion
C098135
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT HENRY LEGG, SR., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STK-CR-FER-2020-0008052
DUARTE, J.
A jury found defendant Robert Henry Legg, Sr., guilty of violating Penal Code section 290.013 by failing to inform a law enforcement agency he had changed his residence address. On appeal, defendant contends insufficient evidence supports his conviction because the evidence at trial established that he was transient and had no prior residence, and therefore could not have failed to change his residence address.
Undesignated statutory references are to the Penal Code.
The People concede defendant's conviction must be reversed; they note that while the evidence was arguably sufficient to support a conviction for violating section 290.011, subdivision (b), had defendant been charged as a transient who moved to a residence and failed to register that address, defendant was not charged with or convicted of that offense. We agree with the parties and reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
After a preliminary examination, the prosecution charged defendant with: "[S]ex Registrant Failure To File A Change Of Address, in violation of [s]ection 290.013 of the Penal Code, a Felony, who at the time and place last aforesaid being a person required to file a change of address, residence and location, did willfully and unlawfully violate the provision of Penal Code [s]ections 290 et seq[.] requiring a person to inform the last registering agency in person within [five] working days of a change of address and location."
At trial, residents of a property in Stockton testified that defendant slept on the living room couch in the main house on the property every night, beginning sometime in June 2020. A detective from the Stockton Police Department who oversees the department's sex offender registrations testified that, for all 12 months in 2020, defendant registered as "transient," without a "residence address." The parties stipulated that defendant had previously been convicted of an offense requiring sex offender registration.
The prosecutor consistently argued to the jury that defendant had violated section 290.013. In his opening statement, the prosecutor explained, "because [defendant] was living at this residence in Stockton, but had not changed his address on paperwork with the Stockton Police Department, he's in violation of Penal Code section 290.013." The trial court then instructed the jury that the prosecution must prove defendant failed to register "within five working days of changing his residence." The instruction defined "residence" as "one or more addresses where someone 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." The jury found defendant "guilty of a violation of section 290.013." The court suspended imposition of sentence and placed defendant on probation.
Defendant timely appealed from the judgment. After numerous extensions of time for preparation of the record and for defendant's appointed counsel to prepare his opening brief, this case was fully briefed on January 16, 2024.
DISCUSSION
The Sex Offender Registration Act (SORA), sections 290 through 290.024, requires those convicted of certain offenses to register their "residence" with law enforcement or, if they have no residence, to register as a "transient." (§§ 290, 290.011.) Section 290.018 makes it a criminal offense for a person required to register as a sex offender to willfully violate any requirement of SORA. (§ 290.018, subds. (a)-(b); see § 290, subd. (a).) The prosecution charged defendant with violating section 290.013, which requires "[a] person who was last registered at a residence address pursuant to [SORA] who changes his or her residence address" to inform the law enforcement agency with which he last registered of that new residence address within five working days of the move. (§ 290.013, subd. (a).)
For the purposes of SORA," '[r]esidence' 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." (§ 290.011, subd. (g).) SORA defines a person who has no residence as "transient" and requires such people follow a separate set of registration procedures. (Ibid.) As relevant here, section 290.011, subdivision (b) provides: "A transient who moves to a residence shall have five working days within which to register at that address."
The People concede that, though the evidence at trial would have supported a conviction for being a transient who fails to register his address after moving to a residence, in violation of section 290.011, the evidence does not support a conviction for failing to inform law enforcement after "chang[ing] his or her residence address," in violation of section 290.013. Specifically, no substantial evidence established that defendant was "[a] person who was last registered at a residence address pursuant to [SORA]," as required by section 290.013, subdivision (a). Rather, the detective's testimony at trial established that defendant had last registered as "transient," meaning without a residence, in 2022 prior to his arguable move to the property in Stockton.
The People correctly concede defendant may not properly be convicted for an uncharged violation of the sex offender registration statutes. Because substantial evidence does not support defendant's conviction for violating section 290.013, we reverse the judgment.
"Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." (People v. Valladoli (1996) 13 Cal.4th 590, 607.) Thus, a person may not properly be convicted of an uncharged offense, other than a necessarily included offense or an attempt to commit a charged offense. (§ 1159; People v. Reed (2006) 38 Cal.4th 1224, 1227; People v. Fontenot (2019) 8 Cal.5th 57, 64.) "[R]easonable doubts in determining the identity of the offense charged are to be resolved in the defendant's favor." (People v. Schueren (1973) 10 Cal.3d 553, 558.)
DISPOSITION
The judgment is reversed.
We concur: Robie, Acting P.J., Ashworth, J. [*]
[*]Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.