Opinion
No. C 02-119 TEH (pr)
April 21, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Michael Apodaca. For the reasons discussed below, the court will deny the petition on the merits.
BACKGROUND
A. The Crime
The parties stipulated that Apodaca had a prior conviction requiring that he register as a sex offender and that he received and signed a standard form upon his release from prison about his registration duty. The form he signed upon his release from prison in October 1986 stated:
I am registering in compliance with 290 P.C. and/or 457.1 P.C. and/or 11590 H S. I understand my requirements as stated in the appropriate Code sections. I further understand that registering pursuant to section 290 P.C., my requirement to register is lifetime and that I must register within 14 days of moving into a city or a county of a city/county.
Respondent's Memo. of Points And Authorities In Support of Answer, p. 2 (quoting People's Exh.2.)
After serving a separate prison term in Ohio, Apodaca was released from prison in Ohio on April 18, 1997. Upon his release, he was informed of his duty to register as a sex offender under Ohio law. He registered in Ohio. In July 1997, Apodaca came to California. He stayed at his mother's house in Oakland for a couple of nights, then applied to move into a homeless shelter in San Jose. His mother reminded him of his obligation to register and he responded that he would do so as soon as he had a permanent address. Apodaca stayed at the shelter in San Jose for 2-3 days, and then moved into another homeless shelter in San Jose, where he stayed for several weeks. And he stayed with his daughter in Sunnyvale "briefly" while saving enough money to rent his own place.
In August 1997, Apodaca rented a room from Czeenida Fras at 1634 Honeysuckle Drive in San Jose. He moved in furniture, a television, and clothing. He paid monthly rent on a regular basis. Ms. Fras saw him there nearly every day. He stayed there during the day, ate his meals at the residence, and slept in his room. Apodaca's daughter visited him there and called him there. On July 30, 1997, Apodaca applied to the Department of Motor Vehicles for a driver's license and listed his address as 1634 Honeysuckle Drive.
Apodaca was stopped by a police officer for a traffic stop on November 22, 1997. When the officer discovered there was a warrant for his failure to register, the officer arrested Apodaca. The officer informed him of his obligation to register under state law even if he had only a temporary address here. Apodaca expressed surprise that he had to register before he had a permanent address and that failure to do so was a felony. He also told the officer that he was living at 1634 Honeysuckle Drive and that he did not register because he did not want his room-mates to know about his criminal past. He was released from custody two days later and then registered with the San Jose Police Department for the first time on November 25, 1997.
Apodaca testified at trial. He explained his understanding of his registration obligation thusly: ". . . my version, my definition, was that when I would get a permanent address, when I would find a place to anchor in, that that would be — I would have to register under that address. . . ." RT 35.
Apodaca's daughter testified that Apodaca had stayed with her at 676 Garland in Sunnyvale for short periods of time in July 1997, and that she intended to have Apodaca live at her home after another resident moved out. Apodaca moved, in with her in late December 1997 or earlier January 1998.
Apodaca admitted that he was convicted of "abduction" in Monterey County, Ohio, in 1987, of two counts of robbery and attempted robbery in Santa Clara County in 1982, of felony sexual assault in Colorado in 1979, and kidnapping in San Francisco in 1973.
B. Case History
Michael Apodaca was convicted following a bench trial in the Santa Clara County Superior Court of failure to register as a sex offender (Cal. Penal Code § 290(g)(2)) and was found to have suffered six serious felony convictions (Cal. Penal Code §§ 667(b)-(i), 1170.12. He was sentenced to a prison term of 25 years to life.
Apodaca appealed. The judgment of conviction was affirmed by the California Court of Appeal and the petition for review was denied by the California Supreme Court. He then filed this action for a writ of habeas corpus and asserted two grounds for relief. The court issued an order to show cause, directing respondent to show cause why the writ should not be granted on Apodaca's claims that (1) his right to due process was violated because there was no proof of adequate notice to him of the duty to register and (2) his 25-to-life sentence amounts to cruel and unusual punishment. Respondent filed an answer, and Apodaca opted not to file a traverse. The case is now ready for the court's consideration.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, within this judicial district. 28 U.S.C. § 84,2241(d).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties do not dispute that state court remedies were exhausted for the claim asserted by McCrae.
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
DISCUSSION
A. Due Process Claim Regarding Notice of Registration Requirement
1. The Notice And The Statute
Apodaca received a notice of his duty to register when he was released from prison. The statute that required him to register was amended in the decade between the time he was first notified of the duty to register and the date on which he was arrested for failing to do so.
As mentioned above, upon his release from prison in October 1986, Apodaca signed a form that stated:
I am registering in compliance with 290 P.C. and/or 457.1 P.C. and/or 11590 H S. I understand my requirements as stated in the appropriate Code sections. I further understand that when registering pursuant to section 290 P.C., my requirement to register is lifetime and that I must register within 14 days of moving into a city or a county of a city/county.
In 1986, California Penal Code § 290(a) provided that any person who had been convicted of certain specified offenses "shall, . . . within 14 days of coming into any county or city, or city and county in which he or she temporarily resides or is domiciled for that length of time register with the chief of police of the city in which he or she is domiciled or the sheriff of the county if he or she is domiciled in an unincorporated area." Cal Ct. App. Opinion, p. 4, quoting former Cal. Penal Code § 290(a) (Stats. 1984, ch. 1419, § 1, p. 4988).
The statute was thereafter amended. The 1997 version of § 290, under which Apodaca was prosecuted, provided that any person who had been convicted of certain specified offenses had to register "within five working days of coming into any city, county, or city and county in which he or she temporarily resides or is domiciled for that length of time." Cal. Ct. App. Opinion, pp. 4-5, quoting former Cal. Penal Code § 290(a)(1) (Stats. 1996, ch. 909, § 2, No. 11 West's Cal. Legis. Service, p. 4150).
The differences between the 1986 version of § 290 in effect when Apodaca first learned his duty to register and the 1997 version of § 290 in effect when he was charged with not registering in 1997 are these: (1) the 1997 version had a shorter grace period, and (2) the 1997 version made failure to register a felony rather than a misdemeanor.
2. The California Court of Appeal's Decision
The California Court of Appeal rejected Apodaca's claim that his right to due process was violated by the lack of notice he received of his registration requirement.
First, the court explained that the difference in grace periods between the 1986 and 1997 versions of § 290 was irrelevant for Apodaca because he had not complied with either the 14- or 5-day grace period. The court also explained that the change in the punishment level from misdemeanor to felony for a violation of the statute did not violate due process. Cal.Ct.App.Opinion, p. 5.
Next, the court explained that California courts had long held that § 290 imposed a continuing duty to register following every change of address, whether the change was permanent or temporary. Id.
The court focused on the notice provided by the 1986 form Apodaca had signed: "Given the identity between the versions of section 290 applicable in 1986 and 1997, we conclude that if in 1986 the form provided defendant with adequate notice of his duty to register the room on Honeysuckle Drive, regardless of whether he considered it a permanent or temporary residence, then it provided adequate notice of his duty to do so under the law as it existed in 1997." Id.
The court rejected Apodaca's argument that the form's requirement that he register within 14 days of "moving into" a city or county was broader than the statute's requirement for registration within a prescribed number of days of "coming into" a city or county and therefore was ambiguous and reasonably could have been understood to require that he register only permanent addresses. The court found the argument meritless for several reasons.
First, defendant ignores the sentence, "I understand my requirements as stated in the appropriate code sections." ([Emphasis] added.) By signing the form, defendant acknowledged that he was subject to the registration requirements as set forth in section 290, which, as discussed above, clearly required him to register both permanent and temporary addresses. Thus, even if defendant never actually read section 290 in 1986 or thereafter, the form expressly directed him to the statute, he assumed responsibility for knowing what it provided, and, as discussed, it would have provided him with notice of his duty to register the Honeysuckle residence within 14 days of moving there, whether or not he considered it a temporary or permanent residence.
In the form, defendant "further" acknowledged that he understood he had a lifelong duty to register within 14 days of moving into a city or county. The word further establishes that this latter understanding is in addition to his previously acknowledged understanding of the statutory requirements. Thus, the latter requirement cannot reasonably be understood as a complete reiteration of or replacement or substitute for the requirements as set forth in the statute. Rather, the form explicitly and unambiguously encompasses both the statutory requirements referred to and the express requirement that he or she register upon moving into a city.
Focusing exclusively on the latter requirement, defendant claims the phrase moving into a city or county or city/county is inherently ambiguous and reasonably susceptible to his view that he was required to register only permanent addresses. We disagree.
First, the word move in this context simply means to change one's place of abode. (See Webster's 3d New Internat. Dict. (1993) p. 1479.) It no more denotes a permanent change than a temporary change, and it certainly does not exclude temporary changes. . . . Thus, the requirement, as expressed in the form, imports a duty to register any move — i.e., change of residence — that lasts longer than the grace period. Moreover, as noted, the form expressly directs a signatory to the statute, which easily resolves any possible confusion concerning the duty to register.
Even if the unqualified and unrestricted phrase moving into, standing alone, could arguably imply that one need only register an address he or she considers permanent, such an understanding of the phrase is patently absurd. The purpose of section 290 is self-evident: "`to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.'" (Citations omitted.) Under defendant's view, however, a sex offender may move about, changing residences, and completely control when, if ever, he or she must register and thereby come under police surveillance. For example, a sex offender could move next door to an elementary school and live there unbeknownst to the police for months, as long as he or she did not consider the address permanent and intended to move to some other more preferable location if and when it became available. Similarly, a sex offender, who decides against ever having a permanent residence, could simply more from one place to another every couple of months and avoid surveillance indefinitely. Clearly, defendant's view of the phrase moving into a city or county is inconsistent with the purpose of the registration requirement and would substantially frustrate the ability of police to monitor sex offenders.
Given our analysis of the form as a whole and discussion of defendant's alleged understanding of the phrase moving into in the form, we conclude that defendant received adequate notice of his obligation to register when he moved into his room on Honeysuckle Drive. Under the circumstances, the evidence he presented at trial to the effect that he misunderstood the scope of the registration requirement was irrelevant. Where, as here, defendant had adequate notice of the registration requirements in section 290, he is presumed to know that it was unlawful to move into the Honeysuckle Drive room and live there for several months without registering. His misunderstanding of the law provided no defense. (Citation omitted.)
Cal. Ct. App. Opinion, pp. 6-8. The court also determined that Lambert v. California, 355 U.S. 225 (1957), was distinguishable in that Apodaca, unlike the defendant in Lambert, acknowledged knowing about his duty to register and that Apodaca had received adequate notice about his duty to register permanent and temporary addresses. Id. at 8-9.
3. Analysis of Federal Claim
Due process is violated by the conviction of a person for failing to comply with a registration law where the law is applied to one who has no actual knowledge of his duty to register and where no showing is made of the probability of such knowledge. Lambert v. California, 355 U.S. at 227-28. The Lambert decision fairly stands alone as precedent on the issue of notice of a law as a requirement for a conviction under it. It is a limited exception to the traditional rule that ignorance of the law is no excuse. In Lambert, the court struck a conviction of a woman who failed to register as a felon within five days of entering Los Angeles County, as required by the Los Angeles Municipal Code. No element of willfulness was necessary for a conviction under the ordinance, and the court assumed for purposes of its decision that the defendant had no actual knowledge of the requirement that she register under the ordinance. See id. at 227. "Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking." Id. at 229.
Apodaca is not entitled to relief under Lambert. As the California Court of Appeal noted, the Lambert case is distinguishable because Apodaca, unlike the Lambert defendant, had actual knowledge of the registration requirement. The state appellate court explained in detail why and how Apodaca had sufficient knowledge of his duty to register any temporary or permanent change of residence. The form Apodaca signed in 1986 told him he had a lifetime registration requirement, and that he had to register whenever he moved into a city or county. The form further informed Apodaca that the registration requirement was pursuant to California Penal Code § 290. Apodaca could have read § 290 if he was in doubt about his registration obligation. By contrast, there was no evidence that the Lambert defendant ever was informed in any way that she had a duty to register. Apodaca may have misinterpreted § 290, but that is not the same as being unaware of it. "The fact that a statute requires construction does not necessarily render it void; if that were so, few criminal statutes would survive." United States v. Crow, 439 F.2d 1193, 1196 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972). Moreover, as the California Court of Appeal noted, the construction Apodaca gave to the statute could result in absurd results, with a crafty sex offender always being able to avoid registration by contending he never was permanently residing anywhere.See Cal. Ct. App. Opinion, p. 8. This interpretation would make the law virtually unenforceable. Even in Apodaca's own case, he had been in California about four months without letting any law enforcement know of his presence. Apodaca actually knew he was subject to a registration requirement and actually knew that the registration requirement was set out in § 290. His is not a case in which circumstances that might have moved him to inquire as to the necessity of registration were completely lacking. Cf. Lambert, 355 U.S. at 229. He does not fit within the limited scope of the Lambert decision. The California Court of Appeal's rejection of Apodaca's claim was not an unreasonable application of, or contrary to, clearly established federal law. Apodaca is not entitled to the writ on this claim.
B. Sufficiency of Evidence of Willful Failure To Register
Apodaca asserts that, because he had no notice or knowledge of his duty to register his Honeysuckle Drive address, there was insufficient evidence that he had willfully violated § 290.
The California Court of Appeal rejected this argument. The court noted that it had determined that Apodaca had adequate notice of his duty to register both permanent and temporary residences. "The prosecution was not required to prove that defendant actually knew his failure to register the Honeysuckle Drive address violated the law and that he willingly failed to do so. Rather, the prosecution need only prove that defendant had notice of the registration requirement and thus theprobability of knowing he had a duty to register and that he knowingly and willfully failed to register that address." Cal. Ct. App. Opinion, pp. 9-10. In light of Apodaca's testimony that he intentionally declined to register his Honeysuckle Drive residence because he did not think he had to and because he did not want his neighbors to know about his criminal background, there was ample evidence that he willfully failed to do so.Id. at 10. His mistake of law did not preclude a finding of a willful violation of § 290. Id.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt, but rather determines whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See Jackson, 443 U.S. at 324;Payne, 982 F.2d at 338. The "prosecution need not affirmatively `rule out every hypothesis except that of guilt,'" and the reviewing federal court "`faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).
California Penal Code § 290(g)(2) provides that a person who willfully fails to register as a sex offender in violation of § 290 is guilty of a felony. The California Supreme Court has determined that a § 290 conviction requires that the defendant actually know of the duty to register. See People v. Garcia, 25 Cal.4th 744, 752 (Cal. 2001). There was sufficient evidence to support the trial judge's finding that Apodaca willfully failed to register. Evidence was presented that Apodaca knew he was required to register with the police authorities within a certain time period, and that he did not do so. He moved into the residence at 1634 Honeysuckle Drive in August 1997 and had not registered by the time he was arrested on November 20, 1997. Evidence was presented that Apodaca had been living at the Honeysuckle Drive address for several months before his arrest: he regularly paid rent, he was seen there nearly every day by the homeowner, he stayed there during the day, he ate his meals at the residence, he slept in his room at the residence, he was visited and called by his daughter at the residence, he moved furniture and clothing into the residence, and he provided the DMV with the Honeysuckle Drive address as his address. He conceded that one of the reasons he did not register was that he did not want his room-mates to know he was a convicted sex offender. Under the version of § 290 in effect at the time he was arrested in 1997, he had to register within 5 days of coming into the county or city, while under the 1986 version of § 290, he had to register within 14 days of coming into the county or city; he missed the deadline under either version of § 290 when he failed to register his address since August 1997 before his arrest in November 1997. He acknowledged that he received the form in 1986 that described his duty to register and referred to the statute requiring registration. The prosecution was not required to prove that Apodaca knew his failure to register violated the law. Apodaca's assertion that he misinterpreted the law was no defense to the crime under state law, according to the California Court of Appeal. Apodaca is not entitled to the writ on this claim.
C. Eighth Amendment Claim
Apodaca's other claim is that his sentence of 25 years to life amounts to cruel and unusual punishment. To recap, the lengthy sentence was imposed following a conviction of failure to register as a sex offender with a finding that he had suffered six prior serious felony convictions.
Two very recent U.S. Supreme Court cases require a denial of Apodaca's claim. In Lockyer v. Andrade, 123 S.Ct. at 1173, the Court rejected the notion that its case law was clear or consistent enough to be clearly established federal law within the meaning of 28 U.S.C. § 2254 (d), except that it was clearly established that a gross disproportionality principle does apply to sentences for terms of years (as well as to the death penalty), but the precise contours of that principle "are unclear, applicable only in the `exceedingly rare' and `extreme' case." 123 S.Ct. at 1173. Andrade casts doubt on almost any non-death penalty petitioner's ability to show that a state court's pre-March 2003 rejection of his Eighth Amendment claim was contrary to or an unreasonable application of clearly established federal law. The other key case is Ewing v. California, 123 S.Ct. 1179 (2003), which upheld a sentence of 25-years-to-life for a recidivist convicted most recently of grand theft. Ewing explained that California's Three-Strikes Law was not constitutionally infirm and that states may deal in a harsher manner with repeat offenders. Id. at 1190.
Apodaca's sentence of 25 years to life imprisonment does not raise an inference of gross disproportionality to his crimes. In the present case, Apodaca was convicted of failing to register as a sex offender. And he was found to have suffered six prior convictions for serious crimes — two rapes, two robberies, an attempted robbery and a kidnapping — which Ewing explained properly may be considered in a sentencing decision. The six prior convictions actually charged as sentence enhancements were but part of a lengthy criminal history. He also had been convicted in 1972 of manslaughter with gross negligence for running over a pedestrian in a sidewalk (apparently while he was driving under the influence of alcohol), been convicted in 1977 of assault with intent to commit rape, and been convicted in 1987 of "abduction" for trying to force a woman into her car at knife point. See CT 111-119.
A 25-years-to-life sentence does not raise an inference of gross disproportionality to Apodaca's current crime in light of his criminal record. See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991) (plurality opinion) (upholding sentence of life without possibility of parole for first offense of possession of 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370, 370-71, 375 (1982) (rejecting challenge to a 40-year sentence for possession with intent to distribute less than nine ounces of marijuana); Rummel v. Estelle, 445 U.S. 263, 265-66 (1980) (upholding a life sentence imposed under a recidivist statute where the three felonies were passing a forged $28.36 check, fraudulent use of a credit card to obtain $80.00 worth of goods and services, and obtaining $120.75 by false pretenses); United States v. Carr, 56 F.3d 38, 39 (9th Cir.),cert. denied, 516 U.S. 895 (1995) (sentence of 22 years upon conviction for sale of 66.92 grams of cocaine base with enhancement under federal Sentencing Guidelines' career offender provision for two previous convictions for minor drug sales was not grossly disproportionate). Apodaca received a very lengthy sentence, but not one that amounted to cruel and unusual punishment. Apodaca was squarely within the spirit of the Three Strikes law, as he had repeatedly committed serious felonies. And he was just the kind of person the sex offender registration law was designed to cover: a sex offender, who had already committed multiple violent sex offenses, was just the kind of person the police would want to keep track of for solving and perhaps deterring future sex offenses. The California court's rejection of the claim was not contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court. Apodaca is not entitled to the writ on his Eighth Amendment claim.
CONCLUSION
The petition for writ of habeas corpus is denied on the merits. The clerk shall close the file.
IT IS SO ORDERED.