Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F2631.
BLEASE, J.
A jury convicted defendant Christopher Maes “of the crime of sex registrant fail to notify change of address [sic], in violation of [Section 290.013, subd. (a)] of the Penal Code” (undesignated section references will be to this code). The trial court sustained allegations that defendant had two prior convictions for “serious” felonies, and sentenced him to state prison for an indeterminate term of 25 years to life.
On appeal, defendant contends the trial court erred in admitting irrelevant and prejudicial testimony, in refusing his request for an instruction that the jury must agree unanimously on the factual basis for the conviction, and in imposing a $30 court facilities fee. He also contends that the length of his sentence is constitutionally impermissible. We shall affirm the judgment.
Our miscellaneous order No. 2 010-002 (filed March 16, 2010) deemed defendant to have also raised the issue (without further briefing) of his entitlement to additional conduct credits under January 2010 amendments to section 4019, which issue is pending in the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, rev. granted June 9, 2010 (S181963).) Because defendant is subject to registration as a sex offender (§ 290 et seq.) and has prior convictions for violent and serious felonies (§ 288, subd. (a); § 288a, subd. (c); § 667.5, subds. (c)(5) & (c)(6); § 1192.7, subds. (c)(5) & (c)(6)), he is among the class of felons excluded from additional conduct credit regardless of the ultimate outcome in the Supreme Court. (§ 4019, subds. (b)(2), (c)(2) & (f); § 2933.1.)
FACTS
Prosecution case:
In 1994, defendant had four unspecified felony convictions for sex offenses, which subjected him to registration as a sex offender. In August 2006, defendant moved into his sister’s home in the Cottonwood area of unincorporated Shasta County, where his mother also lived. On taking residence, defendant registered the address with Shasta County officials. On the back of the form, he initialed each of his listed registration duties. In October, he gave his sister $2,000 from a lump sum disability payment. As he had to document that he had used his benefits for his own needs, she gave him a receipt that it was for rent, food, and other sundry supplies. However, she testified the money was in fact a gift to help her with her mortgage.
At some point after Thanksgiving of that year, defendant’s sister asked him to leave the residence because neighbors were harassing her about his presence. Defendant stayed at the home on and off after that point (his mother admitting him into the home without his sister’s permission) until he moved their mother to Washington. Over the next couple of months, defendant made a couple of trips to Cottonwood to retrieve items belonging to him and their mother, and may have stayed overnight at the Cottonwood home, but his sister did not consider him to be a resident in the home after January 2007. His sister asked him to remove her home from the Shasta County registry of sex offenders, and he had promised to attend to this.
On February 25, 2007, an off-duty police officer in Washington in charge of monitoring sex offenders was playing softball in a park with his family and other children. A van parked nearby. The driver, whom the officer identified at trial as defendant, started shouting encouragement at the officer’s 15-year-old daughter. Neither the officer nor his daughter were familiar with defendant. After about 10 minutes, the van drove to another location in the park.
The officer reported the van’s license plate number and learned it belonged to defendant’s brother, who was a registered sex offender in Washington (and who was apparently incarcerated at the time). When the van slowly passed him again, the officer flagged it down and identified himself. The officer informed defendant about his concerns that a sex offender was in the park. Defendant asserted the sex offender was his incarcerated brother (another brother was a passenger) and mentioned that he had a California driver’s license. However, defendant did not mention his own status either as a convicted felon or as a sex offender subject to registration in California. The officer told defendant that he had “called some officers down, ” at which point defendant drove off.
The following day (February 26), the officer reported for duty and found that defendant himself was listed as being subject to registration as a sex offender. Based on information from another officer, the officer went to a residence and made contact with defendant. Defendant’s mother was also present. He asked why defendant had not been forthcoming about his status as a registered sex offender. Defendant told him he had been afraid to mention it, and his sex offender brother had told him defendant’s offense did not trigger any registration requirement in Washington. The officer cautioned defendant that if he intended to live there, he needed to check with county officials to determine whether or not he was in fact required to register in Washington, or else he might be subject to arrest. Defendant registered with county officials in Washington the following day (February 27).
A Shasta County deputy annuitant was assigned defendant’s file in March 2007. She called him on the 20th and asked about his registration status. He told her he had left his sister’s address with his mother, had briefly moved to his father’s home in Washington after Christmas 2006, and had been living with his mother in Washington since February 2007. The Shasta County records do not contain any registration forms that defendant executed after August 2006.
Defense case:
Defendant testified, augmenting and contradicting the facts above. He paid his sister $2,000 in October 2006 for rent at $300 per month in order to help her with her mortgage. He began to make trips in November 2006 to visit family in Washington. He claimed that a Shasta County official told him that he could visit elsewhere for up to 14 days before it was necessary to update his registration. In December 2006, he travelled back and forth between Washington and Cottonwood to assist in his mother’s move, limiting his stays to less than 14 days. His mother lived first with defendant’s father (her ex-husband), then found a place of her own in February 2007. Defendant stayed with one or the other of them during these visits. However, he still had belongings and received mail at the Cottonwood address and considered it his residence through the end of February 2007 because he continued to sleep there when in California.
The parties stipulated that the Washington police officer (who had returned to Washington at that point in trial) would have testified that a Shasta County official told him as well that defendant would need to give notice only if he were going to leave his registered address for a visit of more than two weeks, and had 10 working days to give notice of an intent to move. Although the Shasta County official recalled speaking with the Washington police officer, she did not recall telling him about any two-week grace period, and would not have advised defendant about a grace period because she was aware this was not an exception to registration requirements.
Defendant signed a “lease extension” as a tenant at his mother’s address in Washington on February 27, 2007. (The form itself attests to an execution date of February 2d on a leasehold running from July 1, 2006 to June 30, 2007.) He asserted he did this to avoid a $5-per-night charge for guests (the form itself stating that this applied only to guests staying longer than 15 days).
Defendant had told the Washington officer that he was only visiting his mother and did not need to register. However, the officer threatened him with arrest unless defendant registered at his mother’s Washington address. Under compulsion of this threat, he registered in Washington and provided a copy of the lease to Shasta County authorities on March 5, 2007, when he was appearing in traffic court. He had not intended to change residence before the date he dropped off the copy of the lease. He believed this satisfied his obligation to give them notice of an intent to change his registered address as of that date.
Despite years of filing registration cards in California, defendant claimed no one had ever explained the duties he had initialed on the backs of these numerous trial exhibits, which he considered to be complicated. He was on disability because he suffered from “ADHD and bipolar manic depressive and... a learning disability and short term memory loss.”
DISCUSSION
I
Defense counsel filed a pretrial motion in limine seeking to exclude portions of the Washington police officer’s testimony (that would describe the officer’s encounter with defendant in the park) as irrelevant and unduly prejudicial. The trial court denied the motion. (We do not need to relate the full details of either the argument or the court’s ruling.)
On appeal, defendant again argues that the reasons he came to the attention of the Washington police officer do not have any relevance to the elements of his offense. He contends the evidence was inflammatory, painting him as a continuing threat to children. He also suggests the error amounts to a deprivation of due process. Defendant’s arguments overstate the degrees to which this evidence was irrelevant or inflammatory.
It may be true, as defendant argues (and the trial court agreed), that the reason defendant came to the attention of law enforcement in Washington was not relevant to any element of the offense and thus was not admissible for that purpose. (See People v. Turner (1994) 8 Cal.4th 137, 189 [but finding that challenged extrajudicial statements were relevant as “context” for extrajudicial admissions].) However, as the present trial court also noted, the prosecution is entitled to give a full picture to a jury, which otherwise might penalize the party with the burden of proof if there are gaps or abstract stipulations in the case that prevent it from reaching the necessary level of confidence in a guilty verdict; thus, the encounter in the park justified what could “be seen as some officious intermeddling by a police officer outside the limits of his authority....” We note this evidence also enhanced the officer’s veracity (in showing that he was not merely harassing defendant) in the dispute between the officer’s version of the events at the home of defendant’s mother as being merely informative of the obligation to register in Washington, as opposed to defendant’s claim that his Washington registration was coerced and not an expression of his intent to change his address from Cottonwood. Furthermore, defendant’s failure to identify himself either as a convicted felony or being subject to registration was relevant as a consciousness of guilt. As a result, we are not dealing with entirely irrelevant evidence.
We also agree with the trial court that the nature of the conduct in the park (shouting encouragement at a 15-year-old girl in the company of her family) was not greatly prejudicial, in the sense that it might have been untoward but did not amount to criminal conduct. Also, the jury was not otherwise aware that defendant’s prior convictions were for child molestation. As a result, at worst the jury might infer that the prior convictions involved relatively less egregious sex offenses with underage girls. We do not perceive a reasonable threat that this evidence (as defendant asserts) raised the spectre of his being a continued threat as a predator of children, and therefore presented a risk of a conviction for reasons of emotional bias extraneous to the evidence and issues at trial. (People v. Doolin (2009) 45 Cal.4th 390, 439.) Consequently, the trial court did not abuse its discretion in balancing the factors in favor of admitting the evidence, for which reason the ruling did not implicate his right to due process under the federal Constitution. (People v. Partida (2005) 37 Cal.4th 428, 439; People v. Kraft (2000) 23 Cal.4th 978, 1035.)
II
A
Initially, the prosecutor charged defendant alternately with violations of former Penal Code section 290, subdivisions (f)(1)(A) and (f)(1)(B). In midtrial, the prosecutor learned that in 2007 the Legislature had transferred the text of these provisions to section 290.013, subdivisions (a) and (b) (“§ 290.013(a)” and “§ 290.013(b)”) without change (for which reason we will adhere to usage of the present section numbers hereafter for convenience). (See Stats. 2007, ch. 579, § 52 [slip bill at p. 84].) In thus focusing on the language of the provisions, she decided the two subdivisions were simply “alternate forms” of the same offense, depending on whether or not a defendant had a known destination (the former requiring notice of the move and simultaneous notice of the known new address within five days of leaving the registered address, and the latter requiring notice within five days of a move to an as yet unknown address and later notice of a new address within five days of its acquisition). She thus proposed dismissal of the count alleging a violation of section 290.013, subdivision (b) and then combining the elements of the two offenses in a portmanteau instruction. Defense counsel did not object to dismissal of the second count or the admixture of the elements of the two in a single instruction, but wanted an opportunity to review the proposed instruction.
Count 1 charged, “SEX REGISTRANT FAIL [sic] TO NOTIFY CHANGE OF ADDRESS inviolation of Section290(f)(1)(A).... Defendant..., [o]n and between [Jan. 1, 2007, and March 5, 2007, ]... changed[d] his... residence address... without having, within 5 working day[s] of the move... informed the law enforcement agency... with which he... last registered, of the move [and] the new address....” (Italics added.)
Section 290.013, subdivision (a) provides, “Any person who... changes his... residence address, whether within the jurisdiction in which he... is currently registered or to a new jurisdiction inside or outside the state, shall, ... within five working days of the move, inform the... agency... with which he... last registered of the move, [and] the new address..., if known... .” (Italics added.)
Defendant never testified that he stayed or intended to stay in Washington in places without addresses, so the provisions in the two statutes for intended or resulting transient status in a location are not at issue on the present facts.
Defense counsel later did not object to the form of the instruction, but requested that the court instruct the jury on the need for unanimity as to the act that underlay its verdict. The trial court concluded there were simply different theories as to how defendant exactly failed to satisfy his registration requirement on leaving Cottonwood, and therefore the jury did not need to be unanimous. It charged the jury with the prosecutor’s proposed instruction. At the outset of this opinion, we quoted the jury’s verdict form, which identified the crime only as a failure to notify of a change of address, without specifying the nature of the failure (and simply citing the predecessor to section 290.013, subd. (a).).
The People do not advance any claim of forfeiture or invited error. Given our disposition, we would need to reach the issue in any event through the lens of ineffective assistance of trial counsel.
In pertinent part, the instruction provided that: “The defendant is charged in Count One with failing to register as a sex offender. To prove that the defendant is guilty of this crime, the People must prove that:... four, the defendant changed his residence address to a new location...; and five, the defendant willfully failed to notify the sheriff of Shasta County... within five working days of the move of the following: The move, [and] the new address or transient location, if known, .... Or, if defendant did not know the new residence address or location at the time of the move, he willfully failed to inform the Shasta County sheriff within five working days of the move that he was moving and thereafter failed [later to] notify the [Shasta County Sheriff] in writing... of the new addressor location within five working days of moving into [it].” (Italics added.)
B
The gist of the offense under either subdivision of section 290.013 is a failure to comply with a twofold obligation: to give notice of leaving the jurisdiction within five working days and to give notice of a destination. Failure to provide the former is sufficient of itself to violate this duty regardless of whether defendant had an intended destination when he left. (People v. Wallace (2009) 176 Cal.App.4th 1088, 1094, 1095-1097; People v. Annin (2004) 117 Cal.App.4th 591, 603-604 & fn. 10 [duty triggered by “‘change, ’ which any reasonable registrant would understand must include moving from the last registered address”].) The only difference between the two subdivisions is in the timing of the required notice of a destination: section 290.013, subdivision (a) punishes the failure to inform of an intended address at the time of leaving; section 290.013, subdivision (b) provides additional time to comply if a defendant does not have a specific address (or intent to be a transient in a specific new location) until five days after acquiring a new address (or the status of a transient) in a new location. The latter subdivision could easily have been simply another clause in the former. As in the trial court’s example, this failure to provide timely notice of a new address whenever acquired is akin to burglary, where the particular type of felony that a defendant intended on entry is immaterial.
However, even if the formal separation into two separate subdivisions had the conclusive effect of creating separate offenses, the underlying acts on which there must unanimous agreement (People v. Deletto (1983) 147 Cal.App.3d 458, 471 [Deletto]), there could not have been prejudice from the failure to instruct on the unanimity requirement. Assuming the jury credited his defense (which the stipulated testimony of the Washington police officer corroborated) that the notices in his registration form were insufficient proof of defendant’s actual knowledge of the five-day period in which to notify Shasta that he had gone to Washington (People v. Garcia (2001) 25 Cal.4th 744, 752), his sole defense to the alternative violation (for failing to provide notice of the new address before the date he dropped off a copy of the lease) was a claim that he did not intend to change addresses more than five working days before that date, and did so only under compulsion from the Washington police officer. A unanimity instruction would not have had any effect on the jury’s resolution of this issue. (Deletto, supra, 147 Cal.App.3d at pp. 466, 473.) Once the jury rejected this sole defense offered, it was not required to agree unanimously on the particular date that defendant acquired the Washington residence, because the failure to comply with registration requirements is a continuing offense. (§ 290.018, subd. (i); People v. Meeks (2004) 123 Cal.App.4th 695, 702 (Meeks); cf. People v. Zavala (2005) 130 Cal.App.4th 758, 768-769 [stalking].) We therefore reject defendant’s argument.
III
Defendant argues the trial court could not impose a $30 assessment for court facilities because he committed his crimes before the 2009 effective date of Government Code section 70373. He argues there would be a violation of constitutional “ex post facto” principles if the statute applied to his crime, and also suggests that the statute intends only prospective application of its provisions.
A few weeks after defendant filed his opening brief, we rejected both of these arguments in People v. Castillo (2010) 182 Cal.App.4th 1410 (Castillo), a decision the People overlook in their brief filed nearly three months afterward. We agreed with People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4, that the statute was constitutional because the assessment was not punitive in nature. (Castillo, supra, 182 Cal.App.4th at p. 1413.) We also found that the statute applied to a conviction, not an offense, so it did not have any retrospective effect on convictions that occurred after its effective date. (Id. at p. 1414.) As defendant’s conviction occurred after the statute’s effective date, the trial court properly imposed the facilities assessment.
IV
In the trial court, defendant invited the court to exercise its discretion under section 1385 to strike one or more of the recidivist findings in order to reduce his sentence. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In passing, both he and the prosecutor debated whether his sentence would violate the constitutional prescriptions against excessive punishment if the court declined to act. In denying the request, the court did not expressly address the issue of whether defendant’s sentence was constitutional.
Though it overlaps in some respects, litigation over a court’s exercise of its discretion under section 1385 to strike a recidivist finding does not reach all of the criteria relevant to a claim of constitutionally excessive punishment. (People v. Cole (2001) 88 Cal.App.4th 850, 868-869 (Cole).) While it is a question of law (People v. Martinez (1999) 76 Cal.App.4th 489, 496), the failure to raise the issue in the trial court deprives the People of any opportunity to develop a factual record in support of the constitutionality of the sentence, and wastes scarce judicial resources in depriving the trial court of the ability to remedy any violation in the first instance. This is why the rule of forfeiture applies generally to all proceedings, including this constitutional issue (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265 & fn. 22; People v. Norman (2003) 109 Cal.App.4th 221, 229; cf. Cole, supra, 88 Cal.App.4th at pp. 868-869 [unfair to consider this constitutional claim on appeal where not litigated in trial court as part of guilty plea, in addition to being barred for lack of certificate of probable cause]), and why as a rule we do not exercise our discretion to reach forfeited legal issues on appeal (on such facts as appear in the record) where this will result in reversal. (See Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 589.)
His forfeiture relieves us of any duty to give our plenary consideration to this claim. As a result, we confine our response to summarizing the exacting criteria for finding a constitutional violation, along with the observation that the present facts do not satisfy them.
A defendant who wishes to show that a sentence is cruel or unusual under the state Constitution must satisfy one or more of three criteria for demonstrating a disproportionate punishment. The first examines the nature of the offense and the offender with particular attention to the degree of danger each may present to society. The second compares the sentence with those for similar offenses under California law, which includes consideration of a defendant’s recidivism and not just the current offense. The last compares the sentence with those in other states, which generally is unavailing in challenging California’s recidivist statutes. (In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1516 (Martinez); People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.) Federal analysis overlaps the criteria under California law generally, and thus does not warrant separate treatment.
The federal charter proscribes cruel and unusual punishment, a standard that is distinct from our state’s provision. (People v. Anderson (1972) 6 Cal.3d 628, 636-637.)
Defendant incorrectly characterizes his crime as passive, victimless, unserious, and nonviolent. To the contrary, California has recognized the serious danger that sex offenders present to society through their strong recidivist tendencies to commit crimes that invade the deepest of personal dignities with an often lifelong effect on their victims. As a result, there is a substantial public interest in the constant monitoring of their whereabouts. (Meeks, supra, 123 Cal.App.4th at pp. 709-710.) It is only where the offense comes in the form of a failure to reiterate registration information provided days earlier that we can deem the offense to be technical or minimal, as in Carmony. Such is not the present case, where defendant’s presence in Washington for months was unknown either to Shasta County or Washington authorities. Defendant has a criminal record dating back to 1983 and has rarely gone more than a few years without committing a new offense except during the lengthy prison term imposed after he violated probation for his 1994 sex offenses (and he repeatedly violated parole thereafter until his eventual discharge in 2006). He has admitted substance abuse problems and mental-health issues for which he does not believe he needs medication any longer, neither of which bodes well for his ability to control his impulses. He makes the usual error in comparing the sentence that his recidivism merits with the sentences for other first-time offenders. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) He thus fails to acknowledge that his sentence is commensurate with any other offender with the same record and does not represent a gross disparity under federal law. (Meeks, supra, 123 Cal.App.4th at pp. 707-708, 710.) Finally, we adhere to the conclusion that California may impose lengthier punishment for recidivism than the other jurisdictions defendant digests in his brief. (Martinez, supra, 71 Cal.App.4th at p. 1516.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Count 2 charged, “SEX REGISTRANT FAILURE TO NOTIFY LAW ENFORCEMENT OF MOVE, inviolation of Section290(f)(1)(B).... Defendant..., [o]n and between [Jan. 1, 2007, and March 5, 2007, ]... changed[d] his... residence address... to a new jurisdiction... without having, within 5 working day[s] of the move... informed the law enforcement agency... with which he... last registered, of his... intent to move, and thereafter failed to notify the last registering agency... of the new address... within five working days of moving into [it].” (Italics added.)
Section 290.013, subdivision (b) provides, “If the person does not know the new residence address... at the time of the move, the registrant shall... within five working days of the move, inform the last registering agency... that he... is moving. The person shall later notify the last registering agency... of the new address... within five working days of moving into the new residence address....” (Italics added.)
The United States Supreme Court has recently reaffirmed its criteria for determining whether a sentence is unconstitutional in a particular case. Only after a court finds that there is a “gross disproportionality” when comparing the nature of the offense and offender with the sentence—which the high court has found only where a nonviolent theft offense resulted in a life term without parole, but not where a nonviolent drug offense received the same sentence—must it undergo intrajurisdictional and interjurisdictional comparisons of punishments for similar crimes. (See Graham v. Florida (2010) 560 U.S. ____, ___ [176 L.Ed.2d 825, 836][ruling, however, that sentence was categorically cruel and unusual]; id. at pp. ____ [176 L.Ed.2d at pp. 854-855][conc. opn. of Roberts, C.J., finding sentence cruel and unusual on particular facts]; id. at p. ____ [176 L.Ed.2d at p. 875][diss. opn. of Thomas, J., not finding sentence unconstitutional either on particular facts or categorically].)
Under federal law, a minimum indeterminate life sentence of 25 years for a simple theft offense does not violate constitutional principles where the offender has a lengthy record (Ewing v. California (2003) 538 U.S. 11, 29 [155 L.Ed.2d 108, 122]; see Lockyer v. Andrade (2003) 538 U.S. 63, 68-69, 76-77 [155 L.Ed.2d 144, 158-159] [habeas will not lie because state court’s conclusion—that a minimum indeterminate life sentence of 50 years for petty thefts is proportionate under federal law—is not unreasonable]), except where the present offense is for only “a harmless technical violation of a regulatory law.” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1072-1073 [life sentence for failure to update sex-offender registration with duplicative data several days after last registration update reaches bottom of the constitutional well under both charters](Carmony).)
As for subordinate federal decisions (such as defendant cites) that have invalidated sentences under California law, we are not obligated to follow them (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), and we do not find them persuasive because they reflect a subtle parsing of Ewing that disregards its central theme of judicial deference to legislative power over sentencing (see Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, 777 [dis. opn. of Kleinfeld, J.].)