Opinion
2d Crim. No. B225812
11-21-2011
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ARISPE, Defendant and Appellant.
Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Janet Neeley, Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1311816)
(Santa Barbara County)
Pedro Arispe appeals the judgment following his conviction for failure to register as a sex offender. (Pen. Code, § 290.011, subd. (b).) He contends that the trial court erred in instructing the jury regarding the actual knowledge element of the offense. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Arispe became subject to the section 290 sex offender registration requirements after his conviction for violation of section 286, subdivision (c)(2). Arispe registered in the city of Lompoc, California, for the first time in December 2008. He registered as a "transient" and listed no other residence. He signed relevant forms setting forth the registration requirements, including forms which informed him that a transient moving to a residence must register his new residence and that, if he has more than one residence, he is required to register all of them, regardless of the number of days or nights he spends at each address.
Although Arispe registered as a transient, his driver's license and vehicle registration stated that his address was 4060 Clubhouse Road in the unincorporated area of Santa Barbara County. Lompoc police officer Harry Heidt advised Arispe that, if the Clubhouse Road address was his residence, he was required to register that address with the Santa Barbara Sheriff's Office. Arispe told Officer Heidt that he used the Clubhouse Road address to collect his mail but was not living there.
Karin Murdock owned the house at 4060 Clubhouse Road, and Arispe stayed at the Clubhouse Road address several nights a week, kept his clothing and other belongings in the house, and had a key to the house. He also stored gardening equipment and a motorcycle on the premises along with a truck he used in his gardening business. At trial, Murdock testified Arispe never "officially" moved into her house but was there as a boyfriend.
In June 2009, a police officer responded to a domestic violence call from Murdock. Murdock told the officer that Arispe lived with her and would stay in her house for four or five days and then leave for two days. She also told the officer that he did not register at the Clubhouse Road address in order to avoid conflict with her neighbors. The officer found Arispe intoxicated in the garage, and arrested him.
Arispe was charged with failure to register as a sex offender, corporal injury to a cohabitant (§ 273.5, subd. (a)), and disobeying a domestic relations order. (§ 273.6, subd. (a).) A prior conviction for a serious or violent felony was alleged. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(2)(A), 1192.7, subd. (c).) The sex offender registration offense was severed from the other charges and Arispe was found guilty after a jury trial. The corporal injury charge was reduced to a misdemeanor, and the disobedience of a domestic relations order charge was dismissed. Arispe pleaded no contest to the misdemeanor. He was sentenced to four years in prison.
DISCUSSION
Arispe contends the trial court failed to adequately instruct the jury regarding the actual knowledge element of the failure to register offense. He argues that the court should have instructed the jury that he must have actual knowledge of the registration requirements as applied to his specific circumstances. We conclude that any instructional error was harmless beyond a reasonable doubt.
Under section 290, a person convicted of certain sex crimes must register with the chief of police or sheriff of the city or county in which he or she resides. (§ 290, subd. (b).) A sex offender with no regular residence must register as a transient. (§ 290.011.) "A transient who moves to a residence shall have five working days within which to register at that address . . . . " (§ 290.011, subd. (b).) Any person required to register based on a felony conviction "who willfully violates any requirement of the Act" is guilty of a felony. (§ 290.018, subd. (b).)
Section 290.011, subdivision (g) provides: "For purposes of the act, 'transient' means a person who has no residence. 'Residence' 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."
Because the offense of willful failure to register involves an omission rather than an affirmative act, a conviction for the offense required that the defendant have actual knowledge of his or her duty to register. (People v. Garcia (2001) 25 Cal.4th 744,752.) The offense occurs only if a person "willfully" fails to register, and a person cannot willfully fail to perform an act without knowing what act is required. (Ibid.)
Here, the trial court instructed the jury with CALCRIM No. 1170 which instructs the jury that a conviction for the offense requires actual knowledge of the registration requirements. The complete instruction given by the trial court states:
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant was previously convicted of PC 286(c);
"2. The defendant resided in an unincorporated area or a city in Santa Barbara County, California;
"3. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 within five working days of changing his transient status or residence wherever he resided;
"AND
"4. The defendant willfully failed to register as a sex offender with the sheriff of that county or the police chief of that city within five working days of changing his residence or transient status within that county.
"Someone commits an act willfully when he or she does it willingly or on purpose."
Arispe argues that, although CALCRIM No. 1170 includes an actual knowledge requirement, the instruction was insufficient and should have been modified to include language that there was no willful violation of section 290 unless he knew that staying at his girlfriend's house most of the week was a change in residence. We disagree that the proposed additional language was required. CALCRIM No. 1170 as given sufficiently explained that registration was required for each location in which Arispe regularly spent his time. It expressly required the jury to find that Arispe had actual knowledge of his duty to register any change in his transient status or residence wherever he resides, and willfully failed to fulfill this duty.
Arispe's reliance on People v. LeCorno (2003) 109 Cal.App.4th 1058, and People v. Edgar (2002) 104 Cal.App.4th 210, is misplaced. Both of those cases concern non-transient defendants who had multiple residences but registered at only one of them. In both cases, convictions were reversed based on jury instructions that a conviction did not require actual knowledge that the registration requirements applied to multiple residences. (LeCorno, at pp. 1067-1068; Edgar, at pp. 212, 221-222.)
Unlike in LeCorno and Edgar, the jury in the instant case was expressly instructed that a conviction required Arispe to have actual knowledge of the duty to register when "changing his transient status or residence wherever he resided," and when "changing his residence or transient status within [Santa Barbara County]." In addition, forms signed by Arispe further informed him that he had to register at each address if he had more than one address where he regularly resides, regardless of the number of days or nights spent at each address.
Arispe also contends that the trial court erred in giving other instructions which undermined the actual knowledge requirement set forth in CALCRIM No. 1170. He argues that the trial court erred by instructing the jury that a mistake of law is not a defense (CALCRIM No. 3407), and by giving a general intent instruction that a defendant must act with wrongful intent but "it is not required that he or she intend to break the law."
As given by the court, CALCRIM No. 3407 stated: "It is not a defense to the crime of PC 290 Failure to Register that the defendant did not know he was breaking the law or that he believed his act was lawful."
In relevant part, the version of CALCRIM No. 250 given by the court stated: "The crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime of Failure to Register, a violation of Penal Code section 290.011(b), that person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."
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Respondent concedes, and we agree, that these instructions were given in error. In People v. Garcia, supra, 25 Cal.4th at page 754, the Supreme Court rejected use of an instruction that ignorance of the law is not a defense in a failure to register offense because such an instruction might allow the jury to convict even if the defendant was unaware of his or her obligation to register. Also, in People v. Barker (2004) 34 Cal.4th 345, 360-361, the court held that use of a general intent instruction similar to CALCRIM No. 250 was error for the same reason.
In both Garcia and Barker, however, the Supreme Court concluded that the erroneous use of an ignorance of the law and general intent instruction was harmless beyond a reasonable doubt. (People v. Garcia, supra, 25 Cal.4th at p. 755; People v. Barker, supra, 34 Cal.4th at pp 359, 361; see also People v. Poslof (2005) 126 Cal.App.4th 92, 100-101.) We also conclude that the jury instructions in this case considered as a whole correctly stated the applicable law and that the erroneous use of CALCRIM Nos. 250 and 3407 was harmless beyond a reasonable doubt.
CALCRIM No. 1170 requires the jury to find that the defendant "actually knew" he had a duty to register within five days of "changing his transient status or residence wherever he resided," and to find that he willfully failed to do so. That language was clear and correct and there is no basis in the record to conclude that the erroneous instructions confused or misled the jury into understanding that actual knowledge was not required. The record shows that the court, parties and jury understood that a conviction required Arispe to actually know the Clubhouse Road address had become his residence, and that the issue before the jury was whether Arispe had such knowledge.
Moreover, we will not reverse a conviction due to instructional error if the record contains no substantial evidence supporting the defendant's position. (People v. Sakarias (2000) 22 Cal.4th 596, 625.) The evidence that Arispe resided at the Clubhouse Road address was overwhelming. He slept most nights at the address, had a key to the house, answered the telephone, kept his clothes and other personal items at the address, and received mail at the address. He also stored his gardening equipment and truck at the address and used the address as his residence in obtaining a driver's license and registering his vehicles. Arispe does not challenge the sufficiency of this evidence, nor did he offer any evidence that he did not reside at the address. Given the evidence, the jury could only have concluded that Arispe knew that he resided at the Clubhouse Road address and was aware of his duty to register that location as his residence.
In addition, Arispe's defense was that he did not believe he was residing at the Clubhouse Road address, but he cites only his registration as a transient, evidence that he did not stay at the address for more than four or five consecutive days, and the failure of a police officer to include an express demand that he register at the address in the officer's warning that he might be considered a resident of the Clubhouse Road address. Arispe's argument at trial virtually acknowledged that he was aware of the requirement to register at the Clubhouse address if he spent several days a week there. To paraphrase Sakarias, the jury could not rationally have found that Arispe's actual knowledge of his duty to register at the address was unproven. (People v. Sakarias, supra, 22 Cal.4th at p. 625.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
James F. Iwasko, Judge
Superior Court County of Santa Barbara
Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Janet Neeley, Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.