Opinion
No. 57846-4-I.
May 21, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-04422-1, Richard A. Jones, J., entered March 8, 2006.
Affirmed by unpublished per curiam opinion.
Phillip Rodriguez was charged by information of one count of failure to register as a sex offender. A jury convicted him of that offense. On appeal, he contends that the information was constitutionally inadequate because it omitted an essential statutory element of the offense — that he was in custody after July 28, 1991. He also argues the insufficiency of the evidence against him and that his constitutional right to counsel of choice was violated by the trial court's refusal to grant a continuance and substitution of counsel. We affirm.
FACTS
In February 1992, Phillip Rodriguez was convicted of first degree rape of a child. He received notice of the requirement to register as a sex offender and signed the King County Sheriff's Office sex and kidnapping offender registration notification form on December 26, 2001. He had previously registered a change of address 11 times, including his last known address in August 2003. In November 2004, an investigation revealed that Rodriguez was not residing at the address he had previously registered with the sheriff's office. The current resident of that address did not know Rodriguez and told the sheriff's office that Rodriguez had not lived at the address since the first week of June 2004. Rodriguez was charged with one count of failure to register as a sex offender on January 5, 2005. As of that date, he had still not registered a change of address as required by a sex offender. The information alleged:
That the defendant PHILLIP D. RODRIGUEZ . . . between June 15, 2004 through January 5, 2005 . . . having been convicted of Rape of a Child in the First Degree, a felony sex offense for which he was required to register as a sex offender under RCW 9A.44.130, knowingly moved and changed his residence address within King County without sending written notice of the change of address to the King County Sheriff within 72 hours of moving, and still has not provided notice of his change of address as of January 5, 2005.
Trial was set for Monday, February 13, 2006. On February 3, Rodriguez requested a continuance, apparently in order to obtain a special evaluation for mitigation at sentencing. The trial court denied the continuance. On February 9, Rodriguez requested another continuance in order to substitute counsel. He wanted to replace his court appointed attorney with private counsel. The new attorney wanted a 30 day continuance to prepare for the trial. The prosecutor objected to the 30 day continuance but suggested she would agree to a continuance of one week. The trial court stated the substitution of counsel was allowed but denied any continuance. The private attorney did not believe he could be prepared for trial on February 13. As a result, the trial court denied substitution of counsel.
The case proceeded to trial as scheduled on February 13, 2006. At trial, Wendy Billingsley, a King County Sheriff's detective, testified about her investigation and Rodriguez's status as a sex offender. When asked "[w]as the defendant in custody with the Department of Corrections after July 28, 1991 due to his conviction in 1992 for rape of a child in the first degree? [she responded,] Yes. He would have been under supervision." After a one day trial, the jury returned a guilty verdict.
DISCUSSION
I. Sufficiency of Charging Documents and Evidence
Rodriguez challenges his conviction for failure to register as a sex offender (failure to register a change of address within 72 hours). He attacks both the sufficiency of the charging document and of the trial evidence by asserting that the State must prove he could be ordered to register initially before proving he failed to register a change of address subsequent to his initial registration. Specifically, Rodriguez argues that the State must include in the information and prove at trial that he was in custody after July 28, 1991, as required by RCW 9A.44.130(4)(a)(i). We disagree.
Sex offenders have a duty to register under RCW 9A.44.130(1)(a). "Any adult or juvenile residing . . . in this state who has been found to have committed or has been convicted of any sex offense or kidnapping offense, . . . shall register with the county sheriff." This duty applies to every person convicted of a sex offense under chapter 9A.44 RCW after the effective date of the original act, February 28, 1990. In addition to the duty, RCW 9A.44.130 also provides time frames in which an offender must register — RCW 9A.44.130(4)(a) applies to initial registration and RCW 9A.44.130(5)(a) applies to re-registration upon moving. A charge for failure to register as a sex offender arises under the failure to comply with the duty to register imposed by RCW 9A.44.130(1)(a) according to the initial timeline in RCW 9A.44.130(4)(a) or re-register under RCW 9A.44.130(5)(a). RCW 9A.44.130(12)(a). Defendant's conviction of a sex offense under chapter 9A.44 RCW after February 28, 1990 is a necessary element of the crime of failure to register. If conviction of a qualifying offense is proven, as a matter of law the defendant has a duty to register under RCW 9A.44.130.
Here, Rodriguez stipulated to conviction of rape of a child in the first degree on February 13, 1992, which qualifies as a sex offense under chapter 9A.44 RCW. Because of this conviction, he is subject to the duty to register under RCW 9A.44.130(1)(a). Rodriguez admits notice of the duty. Furthermore, he complied with this duty by registering a change of address 11 times, including his last known registration on August, 15, 2003. Rodriguez has made no claim that he was not required to register or that his registration is terminated under RCW 9A.44.140.
Therefore, the sole question remaining is whether Rodriguez complied with the re-registration requirement in RCW 9A.44.130(5)(a). RCW 9A.44.130(4)(a)(i) has no application here. RCW 9A.44.130(4)(a) applies only to questions of timely initial registration — it is not an element of the offense. Because this offense related to re-registration, the State did not need to re-allege or re-prove the timeliness of Rodriguez's initial registration.
The inclusion of the element "on or after July 28, 1991, the defendant was in custody" in the jury instructions was unnecessary. No error has been assigned to the jury instructions. On these facts, the inclusion of the unnecessary element was harmless.
II. Right to Counsel
As a final challenge, Rodriguez contends that his right to counsel of his choice was violated when the trial court refused his motion for a continuance of 30 days so he could replace his public defender with private counsel. "[A]mong the components of the constitutional right to counsel is `the right to a reasonable opportunity to select and be represented by chosen counsel.'" State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). However, the right to counsel of choice is a qualified right and "is not a right of the same force as other aspects of the right to counsel." Id. Trial courts have broad discretion on motions for continuances to preserve the right to counsel. Roth, 75 Wn. App. at 824. "[O]nly an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the defendant's right." Id. (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)). The trial court must balance the defendant's interest in counsel of his choice with the public's interest in efficient administration of justice. Roth, 75 Wn. App. at 824. To make its determination, the trial court should consider whether (1) the court has granted previous continuances, (2) the defendant has a legitimate cause for dissatisfaction with counsel, (3) available counsel is prepared for trial, and (4) denial of the motion is likely to result in prejudice to the defendant's case. Id. at 825. We review this determination for abuse of discretion. Id. at 826.
Although the trial court did not provide a record of the reason for denial, the history of the case demonstrates that Rodriguez had already asked for an unnecessary continuance. He asked for a continuance to seek a special evaluation for mitigation at sentencing. The trial court denied the motion because the sentence for a failure to register conviction has a zero to 12 month range and the request for a evaluation for mitigation "doesn't make sense . . . He's better off getting it over with." The motion for a continuance to substitute counsel came a few days after this request and four days before the scheduled trial date. Rodriguez did not express any discontent with his court-appointed counsel. His appointed counsel was prepared for the imminent trial, whereas the private attorney felt he would be unprepared without a 30 day continuance. The trial was anticipated to last about only a day. The trial court could have easily determined that Rodriguez, with the previous unnecessary request for a continuance, was attempting to delay the proceedings and that granting the continuance would needlessly prolong a very short proceeding. The trial court did not abuse its discretion in denying the continuance and substitution of counsel. We affirm.