Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF103844, Elisabeth Sichel, Judge.
Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
As a sex offender, defendant Paul Dean Roberts was required to notify law enforcement of his residence or location in California. Defendant appeals from judgment entered following jury convictions for defendant’s failure to comply with sex offender registration statutes. Defendant was convicted in count 1 of failing to notify law enforcement he had changed his residence or location. (Pen. Code, § 290, subd. (f)(1).) Defendant was also convicted in count 2 of failing to register his new address within five working days of moving on or about October 16, 2001 (§ 290, subd. (a)(1)(A); count 2).
Unless otherwise noted, all statutory references are to the Penal Code.
Citation in this opinion to section 290, including subdivisions (a)(1)(A) and (f)(1), is to the former version of section 290 in effect in 2001.
The court in a bifurcated trial also found true allegations that defendant had four prior felony convictions (§§ 667, subds. (c) & (e)(2)(A) & 1170.12, subd. (c)(2)(A)) and one prison prior (§ 667.5, subd. (b)).
The court sentenced defendant to a total term of 26 years to life in state prison, consisting of a term of 25 years to life on count 1, plus a consecutive one-year prison term for a prison prior. The court also imposed a term of 25 years to life on count 2 but stayed the sentence under section 654.
Defendant contends there was insufficient evidence to support his count 2 conviction and for instructional error on that offense. Defendant alternatively claims that his trial attorney’s failure to raise in the trial court this instructional error constituted ineffective assistance of counsel (IAC). Defendant further contends the trial court incorrectly answered a jury question, resulting in improperly withdrawing from the jury questions of fact. In addition, defendant argues the trial court abused its discretion in denying his motion to dismiss his prior felony convictions (strikes) and complained that imposing a 26-year sentence constituted cruel and unusual punishment.
We agree there was insufficient evidence to support defendant’s count 2 conviction and therefore reverse the conviction. Defendant’s instructional error and IAC contentions related to count 2 are thus moot. We reject defendant’s other contentions.
1. Facts
In 1984 and 1985, defendant was convicted of a total of nine counts of committing numerous lewd acts against five young boys in violation of section 288, subdivision (a). Defendant was placed on probation, with a suspended sentence and required to register as a sex offender. On October 21, 1986, the trial court revoked defendant’s parole and imposed a 25-year sentence because defendant once again committed lewd acts with a child under the age of 14 (§ 288, subd. (a)).
Defendant registered as a sex offender and updated his registration 12 times, beginning in 1985, while on probation, and after he completed a portion of his 25-year sentence and was released from prison. His last registration was for his annual birthday update on May 23, 2001, at which time he provided his address in Highgrove, which is in Riverside County. At that time, he also signed a form acknowledging notice that he must inform the law enforcement agency where he was last registered if he moved within or outside California.
On Thursday, October 11, 2001, defendant had to move from his Highgrove residence indicated on his May 23, 2001, registration form. His parole agent, Viera Rosa, moved him to a motel in Riverside and paid for defendant to stay there five days. Rosa told defendant he had to either register at the motel address within five days or at his new address if he established a residence elsewhere.
Defendant was to report to Rosa on October 15, 2001, to make arrangements for a permanent address change. Defendant did not show up on October 15. That day, Rosa checked defendant’s motel and was informed defendant had left. Within the past year defendant had asked Rosa several times for permission to leave California. Rosa told defendant he could not leave the state.
By Christmas 2001, defendant had moved in with K.L., her husband who was gone a lot, and her 10-year-old son, in Montana. K.L. hired defendant to care for her son while she worked. Defendant lived with K.L. until January 2005. During that time, K.L. divorced her husband, and defendant, K.L., and K.L.’s son continued to live together. They moved in with friends and camped for a while, and then moved to Vaughn, Montana in July 2002.
While living with K.L., defendant used the name, David Lawrence Fuzzel, and told K.L. he moved to Montana because he was dying of prostate cancer and wanted to die in the mountains. K.L.’s friends told her that defendant’s real name was not David Fuzzel. When K.L. confronted defendant with this, he said he used the name because he was in a witness protection program. In January 2005, defendant and K.L. separated.
Shortly before defendant’s arrest in March 2005, California law enforcement located him in Great Falls, Montana. Defendant was working in a bowling alley and arcade, using the alias David Fuzzel.
2. Sufficiency of Evidence of Count 2
Defendant contends there was insufficient evidence he violated section 290, subdivision (a)(1)(A) (count 2). Defendant was convicted in count 2 of failing to register as a sex offender within five working days of his change of residence address or location on or about October 16, 2001. (§ 290, subd. (a)(1)(A).) Defendant argues there was insufficient evidence because there was no evidence that he moved to a new address in California.
There is no evidence defendant remained in California after he left the Riverside motel sometime between October 11 and October 15, 2001, when his parole agent, Rosa, discovered defendant had left the motel. Rosa never heard from defendant again after placing him in the motel on October 11. The only evidence of defendant’s location after he left the motel was that he was in Montana around Christmas time in 2001, and remained there until his arrest in 2005.
At the time of defendant’s alleged count 2 offense in October 2001, section 290, subdivision (a)(1)(A) provided as follows: “Every person described in paragraph (2), for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, . . . shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located, or the sheriff of the county if he or she is residing, or if he or she has no residence, is located, in an unincorporated area or city that has no police department, . . . within five working days of coming into, or changing his or her residence or location within, any city, county, or city and county, or campus in which he or she temporarily resides, or, if he or she has no residence, is located.”
Under the applicable version of section 290, subdivision (a)(1)(A) in effect in 2001, defendant’s duty to register as a sex offender arose when he entered a jurisdiction, and ended when he left the jurisdiction in California. (People v. Davis (2002) 102 Cal.App.4th 377, 382.) Under section 290, subdivision (f)(1) defendant was required to notify the last jurisdiction in which he was registered of his new address or location (Wright v. Superior Court (1997) 15 Cal.4th 521, 528). But if defendant left the State of California, he did not violate section 290, subdivision (a)(1)(A) by failing to register in the city of his new residence or location because the statute only applies to persons residing in or located within California. (§ 290, subd. (a)(1)(A).)
The People agree, and the record reflects, there was thus insufficient evidence defendant moved to a residence or location in California during the period of October 11, 2001, through at least October 18, 2001, and stayed there at least five working days. Rather, the evidence establishes defendant moved to Montana and therefore did not violate section 290, subdivision (a)(1)(A) by failing to register a new California address.
Because defendant’s count 2 conviction must be reversed due to insufficient evidence, it is unnecessary to address his instructional error challenge on that same offense and related IAC contention.
3. The Trial Court’s Response to a Jury Question
Defendant contends the trial court erred in telling the jury that defendant was a resident at the motel where his parole agent placed him on October 11, 2001.
During jury deliberations, the jury submitted the following written question: “Is Mr. Roberts legally a resident at the motel the parole officer authorized funds for Mr. Roberts to live in?”
The prosecutor and defense attorney both submitted on the trial court’s written response, which stated: “Yes, Mr. Roberts is a resident at the motel.”
Defendant argues that the jury’s question was a question of fact for the jury which the trial court should not have answered. Since this court is reversing count 2, as discussed above, we only address defendant’s contention as to count 1. Any objection is moot as to count 2.
As defendant correctly states in his appellant’s opening brief and as the court instructed the jury, in order to find defendant guilty of violating section 290, subdivision (f)(1) (count 1), the jury was required to find that (1) defendant was previously convicted of committing a lewd act on a minor under the age of 14, (2) defendant had been a resident of California subject to the sex offender registration requirement prior to October 16, 2001, (3) defendant moved from California out of state, and (4) defendant knowingly failed to notify the last agency with which he had registered of his new address or location within five working days. (§ 290, subd. (f)(1).)
Defendant asserts that by telling the jury that defendant was a resident of the motel, the court usurped the role of the jury to determine an element of the offense by finding facts and applying the law to them. As a consequence, defendant argues the court prevented the jury from finding that defendant was not a resident of California after leaving his previous Highgrove residence.
The People argue defendant forfeited this issue by defense counsel acquiescing to the trial court’s instruction that defendant was a resident at the motel. Defendant argues he did not forfeit the objection because the trial court’s response was structural error. Alternatively, defendant argues that if the objection was forfeited, his trial attorney committed IAC by not objecting in the trial court.
We conclude that, regardless of whether defendant forfeited the issue or whether there was IAC, any trial court error in telling the jury defendant was a resident of the motel was harmless because the fact was not an element or determinative of count 1. Count 1 concerned defendant’s failure to notify the last agency in California where defendant had registered as a sex offender that he had moved to Montana. Whether defendant was a resident at the motel was irrelevant to the charge. Section 290, subdivision (f)(1), states: “If any person who is required to register pursuant to this section changes his or her residence address or location, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, the person shall inform, in writing within five working days, the law enforcement agency or agencies with which he or she last registered of the new address or location.”
There was overwhelming evidence establishing defendant committed a section 290, subdivision (f)(1) violation. It was also undisputed that he was required to register as a sex offender under section 290; that he was living in California as of May 23, 2001, when he last registered; and that thereafter he moved to Montana and established a residence there without informing, in writing within five working days, the California law enforcement agency where he last registered his address or location.
Because the trial court’s statement to the jury that defendant resided at the motel was irrelevant to count 1, if there was error in making the statement, it was harmless error. (Chapman v. California (1967) 386 U.S. 18, 24.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant contends the trial court abused its discretion in denying his motion to dismiss any of his prior felony conviction strikes (Romero motion). Defendant argues his strike convictions were remote in time and the instant charged offenses do not constitute a repetition of past criminal behavior. The instant charged offenses are merely regulatory offenses. Also, at the time of defendant’s arrest, defendant was gainfully employed.
In opposition to defendant’s Romero motion, the prosecutor explained during the hearing that the alleged strikes were based on defendant’s convictions in 1984, arising from molesting four boys in 1983. Defendant was convicted in 1984 of four counts of violating section 288, subdivision (a), after pleading guilty to the offenses and admitting he had committed lewd acts four times against the first victim, two times against the second victim, and one act against the third and fourth victims. Defendant’s sentence was suspended and he was placed on probation for these offenses.
The abstract of judgment states the convictions were for violating section “288a,” but indicate the offenses were for lewd and lascivious acts.
The prosecutor noted that, in addition to these four convictions, there were five more subsequent section 288, subdivision (a) convictions against defendant in 1985, which the People did not allege as strikes. Defendant was also placed on probation for these offenses.
In 1986, defendant violated his probation and was sent to prison for molesting an eight-year-old boy. After defendant was released, a reasonable inference can be made that defendant continued his criminal behavior by committing calculated predatory acts to gain the trust of potential child victims by absconding to Montana, using an alias, befriending a woman with a young son in Montana, moving in with her, working as her son’s caretaker while the mother was at work, and later becoming employed in a bowling alley and arcade which young boys were likely to frequent.
The trial court noted that the child in Montana cared for by defendant was a victim of defendant’s failure to register as a sex offender in the sense that “the law is designed to protect people just like the child in Montana” from sexual offenders. The court stated that it would therefore consider the child’s mother’s written statement in which the mother said that defendant lied to her, claiming he came to Montana to die. She requested the court to send defendant to prison and not release him because he had caused her great stress due to her inability to ascertain whether defendant touched any of her three children.
Based on these circumstances and court records of defendant’s prior convictions, the trial court denied defendant’s motion to dismiss his strikes.
Section 1385, subdivision (a), authorizes a trial court to strike prior conviction allegations and/or findings in cases brought under the Three Strikes law “in furtherance of justice.” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) In People v. Williams (1998) 17 Cal.4th 148 (Williams), the California Supreme Court stated that in ruling whether to dismiss a strike “‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th 148 at p. 161.)
The spirit of section 1385, commonly referred to as the Three Strikes law, is to balance the defendant’s constitutional right against disproportionate punishment alongside society’s legitimate interest in the fair prosecution of properly charged crimes. (Williams, supra, 17 Cal.4th at p. 160; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) The court may not consider factors extrinsic to the scheme of the Three Strikes law. (People v. Wallace (2004) 33 Cal.4th 738, 747.)
A trial court’s decision not to dismiss a strike is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
Although defendant’s prior strikes were from convictions in 1984 and revocation in 1986 of his probation arising from those convictions, and there was evidence defendant was gainfully employed at the time of his arrest in 2005, defendant’s actions are not deemed outside the spirit of the Three Strikes law. The record demonstrates the trial court appropriately exercised its discretion in denying defendant’s Romero motion by listening to argument on the matter and considering various records, including records of defendant’s prior convictions and probation revocation, and a victim statement. The trial court noted that defendant’s offense of failing to register as a sex offender led to exposing children in Montana to becoming sexual abuse victims.
In addition, defendant’s absconding to Montana in violation of sex offender registration laws, use of an alias, cohabitation with a woman and her young son, working as the boy’s caretaker while the boy’s mother was gone, and employment in a bowling alley and game arcade, supported a reasonable inference that defendant was intentionally placing himself in situations conducive to molesting young boys undetected.
We conclude the court properly balanced defendant’s circumstances against society’s interest. There was no abuse of discretion in the court not dismissing defendant’s strikes since defendant had a well-established history of molesting young boys and exhibited behaviors reflecting an intent to continue doing so after absconding to Montana. By failing to register as a sex offender, defendant posed a danger to the public by impeding the ability of law enforcement in California and Montana to maintain surveillance on him so as to minimize his danger to society. (People v. Poslof (2005) 126 Cal.App.4th 92, 103.)
Also, even after defendant was convicted in 1984 and 1985, of a total of nine counts of molesting numerous young boys and was subject to revocation of his probation, he nevertheless violated his probation in 1986 by molesting another young boy, resulting in revocation of his probation and imposition of a 25-year sentence.
Because there was evidence that defendant remains a risk to the public, particularly young boys, the trial court appropriately denied defendant’s motion to dismiss his strikes.
5. Cruel and Unusual Punishment
Defendant contends his 26 year to life sentence for failing to register as a sex offender, in violation of section 290, constitutes cruel and unusual punishment under the state and federal Constitutions. Defendant was 47 years old when sentenced in this case to 26 years to life in prison. Defendant complains his sentence is cruel and unusual because he will not be released from prison until he is 72 years old and his sentence was imposed for a mere regulatory offense.
Upon review of the evidence and consideration of factors, including protecting society, the nature and gravity of defendant’s current offenses, defendant’s criminal history, the likelihood of recidivism, the severity of punishment, and defendant’s punishment compared with that imposed for other more serious offenses and compared with punishment imposed on the same type of offense in other jurisdictions, we conclude defendant’s sentence is a permissible means of punishing defendant and deterring others from committing future crimes. (People v. Poslof, supra, 126 Cal.App.4th at pp. 103, 109.)
Defendant’s criminal record includes the commission of numerous acts of molesting young boys in violation of section 288, subdivision (a), leading to convictions for four counts in 1984, and five counts in 1985. Even after the court suspended defendant’s sentences for these convictions and placed him on probation, defendant shortly after his release molested another young boy, resulting in revocation of his probation and imposition of a 25-year sentence.
After defendant’s release from prison, defendant exhibited behaviors reflecting planned predatory acts intended to garner the trust of potential young victims, as discussed above. The current offense of failing to notify law enforcement defendant had moved and provide his new address, warranted a severe sentence, particularly since his new offense was an extension of his previous criminal activity of molesting young boys. Defendant’s failure to notify law enforcement of his new location in Montana, facilitating avoidance of detection so that he could continue to molest young boys.
Under such circumstances, the term imposed on defendant is not grossly disproportionate to his current offenses and does not constitute cruel and unusual punishment in violation of the Eighth Amendment. (Harmelin v. Michigan (1991) 501 U.S. 957; Rummel v. Estelle (1980) 445 U.S. 263, 284-285.) Nor is the punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424; People v. Dillon (1983) 34 Cal.3d 441, 477-478; see People v. Murphy (2001) 88 Cal.App.4th 392, 394.) Defendant’s 26 years to life Three Strikes sentence does not qualify as cruel and unusual punishment due to his criminal history as a recidivist and child sex offender whom the jury found knowingly violated section 290, subdivision (f)(1).
6. Disposition
The judgment is reversed as to count 2 and affirmed in all other regards. The trial court shall amend the abstract of judgment to reflect reversal of defendant’s count 2 conviction and sentence. The trial court shall then forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: Richli, Acting P. J., Miller, J.