Opinion
F055159
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. CLIFTON ROBINSON, Defendant and Appellant.
William G. Prahl, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
In this case of failure to register as a sex offender, defendant Clifton Robinson claims, among other things, that the court erroneously admitted evidence of the incriminating answers he gave to a police officers questions after the officer placed him in custody but before anyone read him his rights under Miranda v. Arizona (1966) 384 U.S. 436. Robinson argues that, apart from these self-incriminating statements, the jury received little evidence of his status as a transient or resident at the relevant times, evidence that was necessary to establish one element of each of the three registration provisions Robinson was convicted of violating. As we will explain, any error was harmless beyond a reasonable doubt.
A peculiar feature of this case is that Robinson stipulated that he committed an offense requiring registration and that he knew he had a duty to register; and the People produced unchallenged documentary evidence that Robinson had not registered at a California address since 1990 and had not registered anywhere since 1999. In light of this, we are confident that only a small amount of evidence of Robinsons transience or residence status was necessary to convict, and that the jury would have reached the same verdicts even if the self-incriminating statements had not come in. We reject Robinsons remaining claims of prejudicial error as well. The judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORIES
Robinson became subject to sex offender registration requirements in 1985 when he was convicted of engaging in a lewd or lascivious act with a child. (Pen. Code, § 288, subd. (a).) He was sentenced to three years in prison. According to California Department of Justice records, he registered in 1986, 1989, and 1990. He also registered in 1999 at an address in Florida. No other registrations were recorded. On December 7, 2006, Robinson was convicted in Sacramento County of failing to register as a sex offender. He received a 90-day jail term. On January 20, 2007, when he was released, he signed a form acknowledging his duty to register.
Subsequent statutory references are to the Penal Code unless indicated otherwise.
On November 3, 2007, Merced Police Officer Thomas Martinez saw Robinson bicycling in the dark without a light. Martinez stopped Robinson and asked for identification. Robinson produced a Florida drivers license. Martinez explained that Robinson should have had a light and asked whether he had any drugs or weapons. Robinson held up his hands and said, "do what you have to do." Martinez searched Robinson and found what he thought was marijuana in Robinsons pants pocket. Then, from his dispatcher, Martinez received information that Robinson was required to be registered as a sex offender and appeared to be unregistered. Martinez placed Robinson under arrest and handcuffed him. He did not give Robinson any Miranda warnings.
Martinez told Robinson he was in violation of his registration obligations and asked Robinson why he had not registered as a sex offender. Robinson replied that he was a transient and he had been moving around, so he did not have an address. Robinson said he knew he was supposed to be registering once a month. Martinez then transported Robinson to the police station. He read Miranda warnings to Robinson after they arrived.
The district attorney filed an information on January 4, 2008. The information was amended once, and the charges appear to have been altered a second time before they were presented to the jury. As given to the jury in the verdict forms, there were three failure-to-register counts: (1) failure to register every 30 days while living as a transient in California (§ 290.012, subd. (c)); (2) failure to register within five working days of his birthday while residing in California (former § 290, subd. (a)(1)(A)); and (3) failure to register within five days of either moving to a residence after having been a transient or becoming a transient after having lived in a residence (§ 290.011, subd. (b)). Robinson was charged in count four with possessing not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). For purposes of sentence enhancement under section 1170.12, subdivision (c)(1), counts one and two alleged that Robinson had a previous conviction of violating section 288, subdivision (a).
Counts one and three of the amended information matched the verdict forms, but count two did not. In the amended information, count two was a violation of section 290.012, subdivision (a), which requires all registrants to update their registrations within five working days of their birthdays every year. In the verdict form, count two was a violation of former section 290, subdivision (a)(1)(A), which requires registrants who are residents of California to register within five working days of their birthdays every year. This change appears to have been made because Robinsons only birthday after his release from jail in January 2007, and before his arrest in November 2007, was July 1, 2007. Section 290.012, subdivision (a), became effective on October 13, 2007, so former section 290, subdivision (a)(1)(A), was still in effect at the relevant time.
Sections 290.012, subdivision (c), and 290.011, subdivision (b)—charged in counts one and three—also became effective on October 13, 2007, about three weeks before Robinson was arrested.
Robinson made a motion in limine to suppress evidence of the incriminating statements he made after he was arrested. The court found that the questions about sex offender registration the officer asked after handcuffing Robinson were a custodial interrogation that violated Robinsons Miranda rights. The answers were held inadmissible.
At trial, the prosecutions witnesses were Officer Martinez, who testified about his arrest of Robinson; Linda Jones, an investigative assistant employed by the district attorneys office who prepared and testified about the "290 packet" containing documents relevant to Robinsons registration history; and Delores Haste, an employee of the California Department of Justice who also testified about documents pertaining to Robinsons registration history. Robinson called no witnesses.
During his direct examination of Officer Martinez, the prosecutor avoided any mention of the fact that Robinson identified himself by producing a Florida drivers license, instead asking the officer, "What name did you come up with, as [far] as identifying the subject?" On cross-examination, defense counsel asked the officer, "My client identified himself with a Florida Drivers [License], correct?" The officer said yes. He also answered "Yes" when asked if the license stated Robinsons birth date, July 1, 1955. In response to defense counsels questions about whether the license was valid, whether it was issued in 2003 and expired in 2009, whether it showed a certain Florida address, what class of license it was, and whether it included a physical description meeting the description of Robinson, the officer replied that he did not recall.
When the cross-examination was over, the prosecutor made a motion outside the jurys presence for admission of the evidence that had been suppressed on Miranda grounds. He argued that defense counsels questions about Robinsons Florida drivers license opened the door to this evidence. Rejecting defense counsels argument that admitting this evidence would still be unconstitutional under Miranda, the court agreed with the prosecutor:
"You [defense counsel] created the inference that the defendant provided information he was a Florida resident. Wasnt as strong as youd like it, but once you started down that path, you got the Florida license and now it opened the door to statements made that would indicate the contrary."
The prosecution was then permitted to elicit from Officer Martinez Robinsons statements that he knew he was required to register as a sex offender every month but had not done so because he was moving around, did not have an address, and was a transient.
After the prosecution rested, Robinson made a motion pursuant to section 1118.1 to dismiss the marijuana possession count for lack of evidence. The only evidence relevant to this charge was Officer Martinezs testimony that he found what looked like marijuana in Robinsons pocket. The court granted the motion.
The court gave the jury the following instructions, which reflect Robinsons stipulations to some of the elements, on the three failure-to-register charges:
"The defendant is charged in Count 1, with failing to register as a sex offender in violation of Penal Code section 290.012(c).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant was previously convicted of an offense which required him to register as a sex offender under Penal Code section 290.012(c). The parties stipulated that this element has been proven;
"2. The defendant was a transient within the state, in that he did not have a California residence;
"3. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290.012(c). The parties stipulated that this element has been proven;
"AND
"4. From January 20, 2007 to November 3, 2007, the defendant willfully failed to re-register no less than every 30 days as a sex offender with the police chief of any California city in which he was a transient.
"Someone commits an act willfully when he or she does it willingly or on purpose."
"The defendant is charged in Count 2 with failing to register as a sex offender in violation of Penal Code section 290(a)(1)(A).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant was previously convicted of an offense which required him to register as a sex offender under Penal Code section 290(a)(1)(A). The parties stipulated that this element has been proven;
"2. The defendant was a transient or resided in California on the fifth working day following his birthday in 2007;
"3. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290(a)(1)(A). The parties stipulated that this element has been proven;
"AND
"4. The defendant willfully failed to annually update his registration as a sex offender within five working days of his birthday by either of the following actions:
"a. If defendant was a transient, in that he did not have a residence as of the fifth working day from his birthday, with the police chief of the city where he was present as of that fifth working day following his birthday; or
"b. If the defendant had a California residence, then with the police chief of the city where he was residing as of that fifth working day following his birthday.
"Someone commits an act willfully when he or she does it willingly or on purpose."
"The defendant is charged in Count 3 with failing to register as a sex offender in violation of Penal Code section 290.011(b).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant was previously convicted of an offense which required him to register as a sex offender under Penal Code section 290.011(b). The parties stipulated that this element has been proven;
"2. The defendant was a transient within the state, in that he did not have a California residence;
"3. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290.011(b). The parties stipulated that this element has been proven;
"AND
"4. From January 20, 2007 to November 3, 2007, the defendant willfully failed to register as a sex offender with the police chief of a California city within five working days of coming into that city.
"Someone commits an act willfully when he or she does it willingly or on purpose."
The jury found Robinson guilty of these three charges and found the enhancement allegations true. After granting Robinsons motion under section 1385 to strike the prior offense, the court imposed the middle term of two years for count one, plus eight months, equal to one-third of the middle term, for count two. No sentence was imposed for count three.
DISCUSSION
I. Miranda
After he was handcuffed and before his rights were read to him, Robinson responded to Officer Martinezs questions about his sex-offender registration status by saying that, although he knew he was required to be registered, he was not registered because he was moving around, did not have an address, and was a transient. The People do not dispute that these statements were obtained in violation of Miranda and do not claim the suppression order was erroneous. Instead, they argue in support of the trial courts view that defense counsels cross-examination of Officer Martinez opened the door to the suppressed statements because it included questions about the Florida drivers license with which Robinson identified himself to Officer Martinez. If the ruling was error, it requires reversal unless it was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 295-296, 302, 310.)
We need not decide whether the court erred in admitting the statements, since any error was harmless beyond a reasonable doubt. Each charge required the People to prove that Robinson had committed an offense for which registration was required. Robinson stipulated to this element. Each charge also required the People to prove that Robinson knew he had a duty to register. He stipulated to this also. Each charge required the People to prove that Robinson did not register at the required times between his release from jail on January 20, 2007 and his arrest on November 3, 2007. The People clearly proved by documentary evidence that Robinson never registered at all from 1999 onward. This left the transience/residence element of each offense, the only element for which the admission of Robinsons previously suppressed statements could have made a difference. Since the remainder of the Peoples case was so strong, and because there was other evidence of Robinsons transience/residence status, we are confident that it did not make a difference.
For count one, the People had to prove that Robinson was a transient and violated the 30-day re-registration requirement between his release from jail on January 20, 2007 and his arrest on November 3, 2007. For count three, the People had to prove that Robinson was a transient and violated the requirement of registration within five days of coming into a city during the same period. For count two, the People had to prove that Robinson either was a transient or a resident of California—i.e., that he did not live in another state—from July 1, 2007, to the date five working days later, and failed to re-register during that period.
One item of evidence relevant to transience and independent of Robinsons un-Mirandized statements was a booking sheet printed out from the Merced County Sheriffs Department booking system. It shows defendants name, date and place of birth, Social Security number, and physical description. It also has lines for an address, phone number, occupation, employer, identifying marks and comments, all of which are blank. Officer Martinez, who booked Robinson at the jail, identified this document. Though Martinez was not questioned about whether he asked Robinson for an address, the jury could reasonably infer that that is a routine booking question; and it could reasonably infer from the absence of address information on the form that Robinson had no address.
The jury also knew of Robinsons 2006 registration violation, to which he pleaded no contest in Sacramento County Superior Court. The court instructed the jury that Robinsons "response to the charge in Sacramento involves an admission that he was a resident or had transient status in Sacramento as of November [22], 2006." Combined with the fact that Robinson did not notify authorities that he was leaving California after that date, this instruction provided support for an inference that Robinson was still either a transient or a resident of California from his birthday, July 1, 2007, to a date five working days later, as was required for count two.
Robinson admitted that he was required to register and that he knew he was required to register, and the People proved by documentary evidence that he did not register. Absent the un-Mirandized statements, the evidence for the remaining element—Robinsons transience or residence status—was not overwhelming. Since the remainder of the prosecutions case made it so clear that Robinson failed to do what the law required, however, we do not think the evidence on that element needed to be overwhelming to ensure beyond a reasonable doubt that the jury would convict. All things considered, the case is strong enough to justify confidence in the verdict even if the un-Mirandized statements had been excluded.
II. Sufficiency of the evidence
Robinson argues that, even if his un-Mirandized statements were admissible, insufficient evidence was presented at trial to support the convictions. In particular, he argues that there was insufficient evidence of his transience or residence status at the relevant time. When the sufficiency of the evidence is challenged on appeal, "the 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. Johnson (1980) 26 Cal.3d. 557, 578.)
As we have said, the evidence was strong enough to sustain confidence in the verdicts beyond a reasonable doubt even if the un-Mirandized statements are not considered. It necessarily follows that, with or without those statements, the evidence satisfied the substantial-evidence standard.
Robinson also argues that he could not properly be found guilty of a felony violation in count one because section 290.018, subdivision (g), provides that a violation of the 30-day re-registration requirement is a misdemeanor unless the offender has committed a third or subsequent failure to register. Section 290.018, subdivision (g), further provides that a defendant cannot be charged with a violation of the 30-day re-registration requirement more than once every 90 days. Robinson claims the evidence did not show he committed three or more violations and points out that the jury was not instructed on this point.
As a claim about the sufficiency of the evidence, this contention fails because there was substantial evidence for the proposition that Robinson failed to comply with the 30-day re-registration requirement at least three times between January 20, 2007 and November 3, 2007, even though the statute deems only one of these violations to be possible in each 90-day period. The time between January 20, 2007 and November 3, 2007, exceeds nine months; it includes slightly more than three 90-day periods. The People proved that Robinson did not register at all during this time.
Further, even if there was jury instruction error in this regard, it was harmless. If the jury had been instructed to determine whether Robinson failed to register in three separate 90-day periods during the relevant time, it could not reasonably have declined to find that he did fail.
III. Corpus delicti
Robinson contends that his convictions are invalid under the corpus delicti rule. The corpus delicti rule was described by the California Supreme Court in People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169:
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant.... [¶] ... This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened."
The standard of proof for establishment of the corpus delicti independent of the defendants out-of-court statements is low:
"The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as `slight [citation] or `minimal [citation]. The People need make only a prima facie showing `"permitting the reasonable inference that a crime was committed." [Citations.] The inference need not be `the only, or even the most compelling, one ... [but need only be] a reasonable one ...." (People v. Jones (1998) 17 Cal.4th 279, 301-302.)
Robinson again focuses on the evidence of his transience or residence status, saying the only evidence of this was his own statements to Officer Martinez. As we have said, there was some other evidence on this element. This was enough to satisfy the corpus delicti rule. Further, because the combination of Robinsons concessions and the Peoples documentary evidence makes it so clear that Robinson did not fulfill his registration obligations, there is no danger that he was convicted of "a crime that never happened." (People v. Alvarez, supra, 27 Cal.4th at p. 1169.)
IV. Prosecutorial misconduct
Robinson argues that the prosecutor committed prejudicial misconduct in three ways: (1) he kept the marijuana charge in the information and discussed it in his opening statement but presented no evidence of it except the officers testimony that what was in Robinsons pocket looked like marijuana, resulting in dismissal of the charge after the prosecution rested; (2) he failed to follow the courts order to redact the words "FUGITIVE FROM JUSTICE—WRNT—CHILD MOLESTING" from a rap sheet that was admitted into evidence and seen by the jury; and (3) he referred to facts not in evidence by saying in his closing argument that if Robinson committed an uncharged offense, i.e., leaving California in violation of the registration statutes, then "[t]he only reasonable conclusion" is that he is guilty of the charged offenses. The People point out that, after the court told the prosecutor about the necessary redactions on the rap sheet, it asked the prosecutor for the document and said it would do the redactions itself. Apparently the court did not do this before submitting the document to the jury. Robinson replies that there was error regardless of whether the prosecutor or the court was responsible.
We need not decide whether any of these actions were error, for there is no reasonable likelihood that Robinson would have obtained a more favorable outcome in their absence. (People v. Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12 [prejudice arising from claimed prosecutorial misconduct judged under reasonable-probability-of-different-result standard]; People v. Bolton (1979) 23 Cal.3d 208, 214, fn. 4 ["Courts of this state have generally assumed that prosecutorial misconduct is error of less than constitutional magnitude"].) Once again, Robinson admitted he was required to register and admitted he knew he was required to register; and the People proved clearly by documentary evidence that Robinson never registered after 1999.
The only arguable weakness in the Peoples case was their proof of Robinsons transience or residence status at the relevant time. The alleged instances of misconduct have no particular bearing on that issue. There is no likelihood that the jury would have reached different verdicts if they had not heard of the marijuana charge, if they had not seen the unredacted words on the rap sheet, or if the prosecutor had not made reference to the possibility that Robinson left California in violation of the registration statutes.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Vartabedian, Acting P.J.
Kane, J.