Opinion
APPEAL from the Superior Court of Riverside County. Ct.No. RIF150427, Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Richard Jay Moller, 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, Assistant Attorney General, Peter Quan and Lilia Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
McKINSTER J.
Defendant and appellant Michael Clare Allison is a convicted sex offender. He appeals after he was convicted of one count of “failure to register at all residence addresses where he regularly resided.” (Pen. Code, § 290.010, subd. (a).) He contends that the jury instructions as to that offense were erroneous because they failed to require the jury to find defendant had actual knowledge that he was required to register his girlfriend’s house as a secondary address. We find the contention without merit and we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
The parties stipulated that defendant had been convicted of a sex offense, which required him to register as a sex offender pursuant to section 290. His original conviction took place in 1992 or 1993, and as a result he was subject to a lifetime requirement to register as a sex offender in California.
Section 290 presently provides in full as follows:
In 2002, defendant was arrested on new charges, and in August 2009 he eventually pleaded guilty to one count of violation of section 288.5 (continuous sexual abuse of a child, i.e., engaging in three or more sexual acts with a child under 14), and one count of failure to register as a sex offender (former § 290). Defendant also admitted an allegation that he was a habitual sex offender (§ 667.71), which rendered him eligible for a sentence of 25 years to life. As a result of his plea, defendant accepted a sentence of 18 years, 4 months on the 2005 charges.
In March 2009, overlapping the proceedings on the 2005 charges, Riverside County S.A.F.E. (Sexual Assault Felony Enforcement) Task Force deputies began investigating defendant on a potential charge of failing to register as a sex offender. Defendant’s information on the relevant database showed him registered at an address on Louise Street, near the City of Perris, but in an unincorporated area of Riverside County. The registration form that defendant filed with the Department of Justice provides in part that if a registrant has “‘more than one residence address at which I regularly reside regardless of the number of days or nights I spend at each address, I must register all of the addresses with the law enforcement agency or agencies having jurisdiction over these residences.’” Defendant had initialed this provision on his registration form.
Deputy Topete went to defendant’s registered address several times over a two-week period and never found defendant present. He received information that defendant was residing at another address. Deputy Topete went to the address and interviewed Pamela Walker. She told Deputy Topete that defendant had been her boyfriend for a period of years, and that he stayed at her home on a regular basis. In fact, she had advised defendant to register her address, but he refused to do so. Walker told Deputy Topete that defendant had stayed at her home “a couple of days” in March 2009. Inside Walker’s house, the deputy found and took photographs of men’s clothing items in dresser drawers and in the closet. Walker admitted that the items belonged to defendant. Another person at the Walker home confirmed that defendant stayed there on a regular basis.
When Deputy Topete talked to defendant later, defendant acknowledged that he stayed at Walker’s residence, but he did not want to register the residence because he did not want to encourage Walker to believe he was committed to a long-term relationship with her. Deputy Topete warned defendant that he needed to register Walker’s address, and instructed him to do so right away.
Between March 2009 and May 5, 2009, defendant did not register the address of Walker’s residence. On May 5, 2009, Deputy Topete met defendant at Walker’s residence. Defendant stated that he had been too busy to register Walker’s residence as an alternate residence. Defendant also admitted spending the previous night at Walker’s house. Deputy Topete then arrested defendant.
After presenting this evidence at a preliminary hearing, the district attorney filed an information charging defendant with one count of failure to register as a sex offender (§ 290) and one count of failing to register at all residences where he regularly resided, regardless of the number of days or nights spent there (§ 290.010, subd. (a)). In addition, the information alleged that defendant had a sex offense prior serious felony conviction (§§ 667, subd. (c), 1170.12, subd. (c)(1)).
At trial, Walker denied or did not remember telling Deputy Topete that defendant had spent the night at her house on the evening before the deputy interviewed her, or that defendant had spent several nights at her house the previous week. After a recording of her interview with Deputy Topete was played to refresh her recollection, Walker still claimed she could not remember whether defendant had stayed at her house on the night or two before the interview, but she did admit that defendant normally would spend two to three nights at her residence each month. She also admitted that defendant kept clothing at her house. Walker further admitted that she co-owned a vehicle with defendant, and that the vehicle was normally kept at her home. Although Walker attempted in her testimony to minimize the number of times that defendant stayed at her home overnight, she admitted that he regularly came to her home to shower, change clothes and eat dinner; defendant’s own residence had burned down and he had no electricity, water or gas there.
Walker had known defendant for 15 to 16 years, but they were in a relationship for the past two years. It was during the past two years that defendant would normally spend two or three nights a month at her home. Walker admitted that she had discussed with defendant whether he should register her address with the police, and she had asked him to register her address.
Deputy Topete testified that he was assigned to investigate defendant’s registration status, and that he went to defendant’s registered address in Perris. At the Perris address, Deputy Topete found essentially a vacant lot, with a burnt mobile home and a “couple [of] junk cars.” There may have been a horse on the property. Deputy Topete went by the property several times during a two-week period, both early in the morning and later in the afternoon. He never saw any indication that anyone was living on the property or could occupy the property.
Deputy Topete received information that defendant was probably living elsewhere (i.e., at Walker’s home) and investigated that address. He found a car at Walker’s home that was registered to defendant. Each time Deputy Topete went by Walker’s home, two to three times a week, defendant’s car was parked there. There was also another vehicle, a van, registered to defendant, which was parked at Walker’s home.
Eventually, Deputy Topete made contact with Walker on March 12, 2009. He recorded an interview with her on that date. In the course of the interview, Walker told the deputy that defendant had spent the previous two nights overnight in her home.
Later the same day, March 12, 2009, Deputy Topete met with defendant at a supermarket shopping center about a mile or two away from Walker’s residence. Defendant had a motor home in the parking lot at the shopping center. During a recorded interview, defendant admitted he spent three or four nights a month at Walker’s house; Walker evidently asked defendant to register her address, but he did not want to because he did not want her to get an “emotional attachment” to him. Deputy Topete asked defendant point-blank, “Well, if you stay there, why don’t you register it, man?” Defendant stated, “If, if, I, I will register it.”
On May 5, 2009, two months later, Deputy Topete returned to Walker’s residence early in the morning, by about 7:00 a.m., and found both Walker and defendant present. Defendant admitted he had spent the night there. Deputy Topete then arrested him for failure to register Walker’s address.
The records officer gave evidence that defendant had not registered Walker’s address.
The People also presented evidence that, in 2006, defendant had been investigated for failure to register an address in Fullerton. Defendant told the deputy that he “had been kicked out of his residence in Perris and had been staying with his father in Fullerton.” Defendant stated that he did not want to register his father’s address because his father lived in a mobile home park, which prohibited sex offenders from residing there.
Defendant testified in his own behalf at trial. He admitted that he previously had not registered the Fullerton address: he testified that “I didn’t register the house that was left to me in Fullerton, not for the reasons they said, but I didn’t register it.” He explained that, during his divorce from his ex-wife, he had been excluded by restraining order from the Perris property. He had been staying in a travel trailer on the property, trying to work things out with his ex-wife, but after she had taken out a restraining order, he had nowhere else to go but the Fullerton residence. His grandparents were dead and he did not register the address because he “didn’t want to drag their name through the mud.” He vehemently stated that “There was absolutely no problem with sex offenders registered there, ” and after his arrest in 2006, he “went immediately to the Fullerton Police Department and registered that address as a second residence.”
The house in Perris burned in 2008; defendant bought a motor home to stay in on the Perris property. From the beginning of 2009, defendant admittedly had a dating relationship with Walker, but he claimed that “[s]he was staying at my property a lot, ” and later repeated that “[s]he stayed at my house all of the time, ” meaning in the motor home at his Perris property.
Defendant admitted keeping clothes in Walker’s house, and admitted taking showers there frequently. He also admitted having stayed at Walker’s house on the night of March 11, 2009, and that he had stayed there about three or four times that month. He said, however that he “wasn’t living there, ” and that he only went to her house for a few hours at a time, “Long enough to take a shower, maybe watch a movie, [and] get something to eat.” Then he would return to the dry cleaning store he operated and stayed in his motor home in the parking lot. Defendant also claimed he went to Walker’s house to use her Internet service.
Defendant admitted telling Deputy Topete he would register Walker’s address, but testified that he had no intention of doing so. He wanted to say anything to get the deputy to leave, but he did not register Walker’s address because “it’s not my house. I never wanted to live there. I never will live there.... [¶]... [¶]... I don’t get mail there. It’s not my furniture. It’s not my house.” Defendant explained his understanding of a second registration address as “like my house in Orange County where... all of my furniture is, where my home office is, where I park my cars.... Second residence is, it’s a second house. It’s where you live.” Despite numerous denials that he spent overnights at Walker’s house, defendant eventually admitted that he slept at her home perhaps two to five nights a month, although some months not at all.
At the close of evidence, the trial court dismissed count 1, failure to register in violation of section 290. The jury retired for deliberations, and returned a verdict finding defendant guilty on count 2, failing to register a second address. (§ 290.010.) Defendant had previously admitted his one-strike sex offense prior. The trial court sentenced defendant to one-third the middle base term (one-third of four years, or one year, four months) on count 2, to run consecutive to the 18-year sentence imposed in his earlier 2009 plea agreement.
Defendant has appealed, contending that the instructions in his case were erroneous.
ANALYSIS
I. Standard of Review
Whether jury instructions correctly state the law is a question reviewed independently on appeal. (People v. Posey (2004) 32 Cal.4th 193, 218.) Whether jury instructions are erroneous because they improperly remove an issue from the jury’s consideration is likewise a question reviewed de novo. (Ibid.)
II. The Instructions Properly Required the Jury to Find That Defendant Had Actual Knowledge That He Was Required to Register the Second Address
Defendant contends that the instructions given to the jury failed to convey that the prosecution was required to prove defendant actually knew that he was required to register Walker’s address as a second address. We find the argument unpersuasive.
Section 290 (set forth in full in fn. 1, ante) requires sex offenders residing, working or attending school in California to register with a police agency in any jurisdiction where the offender resides. (§ 290, subds. (b), (c).) Section 290.010 provides: “If the person who is registering has more than one residence address at which he or she regularly resides, he or she shall register in accordance with the Act in each of the jurisdictions in which he or she regularly resides, regardless of the number of days or nights spent there. If all of the addresses are within the same jurisdiction, the person shall provide the registering authority with all of the addresses where he or she regularly resides.” Defendant was charged with a violation of section 290.010, i.e., a failure to register a second address where he “regularly reside[d], regardless of the number of days or nights spent there.”
The court drew up the following instruction for the jury with respect to this offense:
“The defendant is charged with failing to register as a sex offender in violation of Penal Code section 290.010.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant was previously convicted of a sex offense requiring registration under Penal Code section 290.
“2. The defendant resided in California.
“3. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resided.
“4. The defendant had more than one residence where he regularly resided, regardless of the number of days or nights spent there.
“AND
“5. The defendant willfully failed to register as a sex offender all addresses where he resided in Riverside County, California, with their respective jurisdictions.
“Residence: one or more addresses at which a person regularly resides, regardless of the number of nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.
This instruction was evidently fashioned on section 290.011, subdivision (g), which defines a “residence”: “For purposes of the Act, ... ‘[r]esidence’ means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.”
“As used in this instruction the term residence means a temporary or permanent dwelling place, which one keeps and to which one intends to return, as opposed to a place where one rests or shelters during a trip or a transient visit.”
The court further instructed on the required mental state as follows: “The specific mental state required for the crime of § 290.010 Penal Code is knowledge that the defendant had a duty to register as a sex offender under Penal Code § 290 wherever he resided regardless of the number of days or nights spent there.”
In People v. Gonzales (2010) 183 Cal.App.4th 24 [Fourth Dist, Div Two], this court held that section 290.011, subdivision (g), which defines the term “residence, ” was not vague, and that it “sufficiently explained that registration was required for each location in which defendant was regularly spending time. The definition provided in section 290.011[, subdivision] (g) makes it clear the Legislature did not intend to limit registration to a narrower definition than that provided in section 290.011, which was included in the jury instructions provided to the jury in the instant case. Such definition is broad, with no limitations as to a set amount of time or time of day for a finding of residence. This is consistent with the objective of section 290, which... is to enable local law enforcement agencies to keep known sex offenders under surveillance at all times ‘“‘because the Legislature deemed them likely to commit similar offenses in the future....’ Plainly, the Legislature perceives that sex offenders pose a ‘continuing threat to society’ [citation] and require constant vigilance. [Citation.]”’” (Gonzales, at p. 37.)
In People v. Poslof (2005) 126 Cal.App.4th 92 [Fourth Dist., Div. Two], also decided by this court, we held that instructions as a whole were proper, which informed the jury it must find the defendant had actual knowledge of his duty to register a second address, and that he willfully failed to register the second address. (Id. at pp. 98, 99.) Further, the court in Poslof gave an additional, misleading instruction on general intent. We concluded that, although the general intent instruction should not have been given, any error was harmless because the instructions as a whole clearly informed the jury that it must find the defendant was aware of his obligation to register the second address. (Id. at pp. 100-101.)
The California Supreme Court in People v. Garcia (2001) 25 Cal.4th 744, at pages 753-754, established the requirement that failure to register does require actual knowledge of the duty to register. However, an erroneous definition of “willfully” in the instructions was harmless because of the strong evidence that the defendant knew of his duty to register, and because of other instructions requiring that the defendant had been informed of his duty to register. (Id. at p. 755.)
In People v. LeCorno (2003) 109 Cal.App.4th 1058, the Court of Appeal reversed a conviction for failing to register a second address because the defendant had been misinformed by a police officer that he only needed to register the residence “‘where you spend the most time.”’ (Id. at p. 1062.) Because there was strong evidence that the defendant misunderstood his duty to register, the erroneous denial of an instruction that the jury must find the defendant had actual knowledge of his duty to register was not harmless. (Id. at pp. 1064, 1070.)
Here, the instructions given to the jury were more than adequate to require the jury to find that defendant had actual knowledge of his duty to register Walker’s address as a second residence.
Defendant urges that the term “regularly resides” is unconstitutionally vague, because it attempts to divorce the idea of “regular” residence from any particular number of days or nights spent at the location. We disagree. Regardless of any issues of “regular” residence or transitory passage at the margins of possible scenarios, there is no question in this case that defendant “regularly resided” at Walker’s home. “Residence” was properly defined as a place at which defendant regularly stayed, regardless of the number of days or nights spent there. Both the instructions and the evidence adequately conveyed defendant’s knowledge that Walker’s home qualified as a registrable second residence. Both defendant and Walker attempted to minimize the time that defendant spent at her house; it was to counter these kinds of evasions that the phrase “regardless of the number of days or nights” is included in the statutory definition. Given the reasonable purpose of the language, and the overall purpose of the registration statutes, the terms “regularly resides, ” “residence, ” and “regardless of the number of days or nights spent, ” when construed together, are not unconstitutionally vague. Here, even defendant’s and Walker’s minimizations of events, however, were insufficient to hide the truth: defendant went to Walker’s home on many occasions and stayed for hours at a time, taking showers, changing clothes, eating meals, watching television, and using the computer. Even under defendant’s own evidence, he stayed overnight there several times a month. He routinely parked his vehicles there. Even though both defendant and Walker claimed that he often stayed overnight at other locations, their testimony did not negate his maintenance of regular residence at Walker’s home. Given the statutory purpose-to apprise law enforcement officers of a sex offender’s likely whereabouts-the instructions properly held defendant accountable to register a second address where he was frequently to be found and actually resided.
The instructions also plainly stated that the jury must find defendant had actual knowledge of his duty to register all residences. Although defendant testified as to his own state of mind, that a police officer in Orange County had told him he did not have to register a home (i.e., his Orange County home), that evidence was impeached by many other items of evidence, including: (1) defendant had sometimes registered the Orange County home as a primary or secondary residence in the past; (2) he had been previously convicted of failing to register the Orange County home as a second residence; (3) defendant failed to produce evidence (i.e., the actual testimony of the officer) to corroborate his story; (4) even under defendant’s “state of mind” evidence, the officer did not tell defendant that he definitively had no duty to register the Orange County home, but merely that the officer did not want defendant on his caseload (i.e., the officer did not purport to make a statement of law about second residences in general, but only purported to excuse registration in Orange County of the Orange County home, for the officer’s own convenience); (5) statements of both defendant and Walker indicating that she had requested he register her address; and (6) most importantly, defendant’s recorded interview with Deputy Topete, in which defendant was directed to register Walker’s home, and in which he promised to do so. Defendant’s excuse, that he did not want Walker to place too much significance on their relationship, had been specifically rejected by Deputy Topete, and was, of course, irrelevant to defendant’s obligation to register.
Even if the instructions given could be regarded as erroneous, any error was harmless beyond a reasonable doubt given the overwhelming evidence both of defendant’s regular residence at Walker’s home, and his explicit acknowledgment of the duty to register that address (and promise to do so).
The jury instructions were proper, and any error was harmless beyond a reasonable doubt. The judgment is affirmed.
DISPOSITION
For the reasons stated, the judgment is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.
“(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act.
“(b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.
“(c) The following persons shall be required to register:
“Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.”