Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR-242965
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant was convicted following a jury trial of a felony a violation of Penal Code former section 290, subdivision (a)(1)(D), and a misdemeanor violation of Penal Code former section 290, subdivision (a)(1)(C). He received a state prison term of 16 months for the felony conviction and a concurrent 16-month term for the misdemeanor conviction. Defendant claims in this appeal that he was improperly charged with a violation of section 290, subdivision (a)(1)(D), and convicted of that offense without sufficient evidence that he had a residence or suffered a prior felony conviction. He also challenges the jury instruction on the section 290, subdivision (a)(1)(C) offense, and the sufficiency of the evidence to support that conviction. We find that the convictions are supported by substantial evidence, and no prejudicial instructional error occurred. We agree with defendant that an unauthorized sentence was imposed on Count 2, and vacate that sentence, but otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated. Former section 290, subdivision (a)(1)(D), is now section 290.012, subdivision (a). All of the subdivisions we refer to are the former subdivisions of section 290 that were effective in 2007, at the time the charged offenses were committed.
STATEMENT OF FACTS
A stipulation was entered at trial that defendant “has previously been convicted of an offense that requires him to register as a sex offender pursuant to Penal Code section 290.” Detective William Shaffer of the Fairfield Police Department (Department) assisted defendant with his sex offender registration on January 5, 2007. Defendant informed the officer that he was “transient or homeless at that time” and “kind of staying between a couple different places” he identified: the home of his sister Lourdes Rodelo on Park Lane in Fairfield, and the residence of a “girlfriend” Lida Osorino and his son on Meadows Street in Vacaville. Detective Shaffer read to defendant each provision of the Registration Notification Statement (Statement), which advised him of the registration requirements, including the duty to register annually within five working days of his birthday with the law enforcement agency having jurisdiction over his residence or his current registration as a transient. Defendant was also notified by the officer and in the Statement that he must update his registration every 30 days with the law enforcement agency having jurisdiction over the location of his physical presence as a transient. When asked by the officer, defendant stated that he understood the provisions of the Statement and initialed each of them. Both defendant and Detective Shaffer signed the Statement. Detective Shaffer then submitted the Statement to the records division of the Department so defendant was “entered into the system as a registrant.”
Nancy DiGiovanni, police technician with the Department, received the Statement and other records of defendant’s registration from Detective Shaffer in January of 2007. She entered the records into the computer system database. Defendant’s birthday was April 8, so he was required to register within five days before or after that date every month. DiGiovanni testified that defendant registered on February 5 and March 6, 2007, on both occasions as a transient. On April 9, 2007, DiGiovanni received a telephone message from defendant on her “recorder,” and subsequently entered in his records that he “was possibly out of state.” Defendant neither registered nor contacted DiGiovanni after that date.
Officer David Novelli of the Vacaville Police Department contacted defendant on May 11, 2007, in front of Lida Osorino’s residence in Vacaville. Officer Novelli was aware that defendant had an “outstanding warrant” in “another case,” so he immediately arrested him.
Defendant testified in his defense that he did not live with Orsorino or his sister in 2007. According to defendant he slept in a park, in cars of friends, or “different places” in Fairfield and Vacaville, to remain close to his girlfriend Osorino and his son. Defendant had registered monthly for the past five years, primarily as a transient “in Vacaville.” He was aware of the monthly registration requirement.
On April 8, 2007, defendant “was going out of the country” to attend his grandmother’s funeral in Mexico. He called the Department twice from Osorino’s residence to leave telephone messages that he would be “out of the country.” Defendant knew that “by law” he was required to register, and would have done so if he had not been in Mexico. Defendant returned on May 3, 2007. The next day he visited Osorino’s residence to see his son. He got “into an argument” with Osorino, which resulted in an appearance by the police there. Defendant fled before the police arrived.
Defendant did not arrive in Mexico in time for his grandmother’s funeral, but “went there and paid [his] respects.”
Defendant initially testified that he did not return until May 9, until he was reminded of the incident on May 4.
Defendant testified that he did not register promptly after his return from Mexico because he “totally forgot,” although he knew he “was going to be violated for not registering,” and “get arrested for it” and “other misdemeanor warrants and stuff like that.” Defendant wanted to see his son again, and intended to turn himself in thereafter. Defendant went to Osorino’s house again on May 11, 2007, to visit his son, whereupon he was arrested.
In rebuttal, the prosecution offered testimony from defendant’s sister Lourdes Rodelo, who recalled that in the beginning of April she gave defendant a ride from her home in Fairfield to Vacaville, where she thought defendant lived with his girlfriend. Rodelo was not aware of the death of her grandmother; she “lost contact” with her family in Mexico.
Lida Osorino testified that between January and May of 2007, defendant was “in and out” of her residence to “see his son.” Defendant did not disclose the nature of “his business” to Osorino. He just visited to “see his baby, and that’s it.” Osorino recalled the event on May 4, 2007, when defendant was “having dinner” at her house and she “had to call the police.” Defendant was also at her home “two or three days” or a “couple of weeks” before that, although she did not specifically recall the date.
DISCUSSION
I. The Conviction of a Violation of Section 290, Subdivision (a)(1)(D).
Defendant presents a two-pronged challenge to his conviction of a violation of section 290, subdivision (a)(1)(D): first, that inadequate evidence “of the ‘residence’ element” of the statutory violation was presented; and also, that as a “transient” he “should have been charged” instead with a violation of subdivision (a)(1)(C)(iii). Defendant claims that subdivision (a)(1)(D) applied “only to persons with residences,” whereas subdivision (a)(1)(C)(iii) was a “special provision, applicable particularly to ‘transient’ registrants.” He therefore argues that in light of the lack of “substantial evidence that he had a residence,” he was “prosecuted under the wrong provision” and his conviction cannot stand.
Subdivision (a)(1)(C)(iii) is now section 290.011, subdivision (c).
Before we confront the two related arguments we briefly examine the statutory sex offender registration scheme in the context of the present case. “Section 290 ‘applies automatically to the enumerated offenses, and imposes on each person convicted a lifelong obligation to register.’ [Citations.] Registration is mandatory [citation], and is ‘not a permissible subject of plea agreement negotiation’ [citation].” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) “At the time of the alleged offense, section 290 stated in pertinent part: ‘(a)(1)(A) Every person [who is required to register], for the rest of his or her life while residing in California,... 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... within five working days of coming into, or changing his or her residence within, any city, county, or city and county....’ (Stats. 2005, ch. 704, § 1, ch. 722, § 3.5,...)” (People v. Williams (2009) 171 Cal.App.4th 1667, 1672, italics omitted.) Subdivision (a)(1)(C), articulated the registration requirements for a person “living as a transient in California,” including: registration in the jurisdiction where the transient is “physically present” upon release from custody; reregistration no less than once every 30 days thereafter; registration upon moving into a residence; and an annual update of registration with “current information” each year “within five working days of his or her birthday” in the jurisdiction where he or she is physically present. Subdivision (a)(1)(D) provided: “Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subparagraph (A).”
Subdivision (a)(1)(B), which is not pertinent here, specified that a person with “more than one residence address at which he or she regularly resides” must register in each jurisdiction and provide all of the addresses “where he or she regularly resides.”
A. The Evidence to Support a Conviction of a Violation of Section 290, Subdivision (a)(1)(D).
Proceeding out of chronological order, we first confront defendant’s claim that the evidence fails to prove a violation of subdivision (a)(1)(D). Defendant complains that “subdivision (a)(1)(D) requires persons annually to update with the entities with which they are registered at their residences under subdivision (a)(1)(A),” and does not apply to transients. Thus, his argument proceeds, without substantial evidence that he “had a residence” or had previously “registered with the entity having jurisdiction over that residence,” his conviction for a violation of subdivision (a)(1)(D) must be reversed.
Our role as “an appellate court in reviewing the sufficiency of the evidence is limited.” (People v. Ceja (1993) 4 Cal.4th 1134, 1138; see also People v. Lewis (2001) 25 Cal.4th 610, 643–644; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellant’s guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fn. omitted; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1088–1089.) “ ‘Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact.’ [Citation.]” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 79.) To withstand an insufficiency of the evidence challenge, the trial court must find and the record must contain evidence substantial enough to support the finding of each essential element of the crime. (United States v. Gaudin (1995) 515 U.S. 506, 522–523; People v. Johnson (1992) 5 Cal.App.4th 552, 558.)
“ ‘In making this determination, the appellate court “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’... ‘Our task... is twofold. First, we must resolve the issue in the light of the whole record.... Second, we must judge whether the evidence... is substantial....’ ” ’ [Citation.]” (People v. Proby (1998) 60 Cal.App.4th 922, 928, italics omitted.) As a reviewing court we do not resolve credibility issues or evidentiary conflicts. Those determinations are made by the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
Defendant’s argument is predicated entirely on the premise that subdivision (a)(1)(D) stated a registration requirement only for those who have a “residence” within the meaning of subdivision (a)(1)(C)(vii), whereas he was a transient who was subject to the annual registration requirements of (a)(1)(C)(iii). Our task in construing the meaning and scope of the various provisions of section 290 “ ‘is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.]’ [Citation.] In the end, we must adopt the construction that is most consistent with the apparent legislative purpose and avoids absurd consequences.” (People v. Barker (2004) 34 Cal.4th 345, 357.) “ ‘Our first step [in determining the Legislature’s intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning.’ [Citation.]” (Songstad v. Superior Court (2001) 93 Cal.App.4th 1202, 1207.) “The words are construed in context and harmonized to the extent possible with other statutes relating to the same subject matter.” (People v. Peña (1999) 74 Cal.App.4th 1078, 1082.) “ ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.] If, however, the language supports more than one reasonable construction, we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211–212.)
A “residence” was defined in subdivision (a)(1)(C)(vii) as a “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.”
Looking first at the language of the statute, subdivision (a)(1)(D) is not by its terms limited to those sex offender registrants who have a residence. Rather, it more expansively states that “the person shall be required... annually” to update his or her registration “with the entities described in subparagraph (A).” (Italics added.) The element of a residence is not mentioned in the statute. The “person” described in subparagraph (A) refers to any person who has been convicted of an enumerated offense that carries with it the mandatory obligation to register as a sex offender. Consistent with the broad language of subdivision (a)(1)(D), the California Supreme Court declared, without limiting the reach of the statute to nontransients, that, “A registered sex offender must, within five working days of the offender’s birthday, update his or her registration. (Pen. Code, § 290, subd. (a)(1)(D).)” (People v. Sorden (2005) 36 Cal.4th 65, 68, italics added.)
Defendant submits that the reference in subdivision (a)(1)(D) to “registration with the entities described in subparagraph (A)” brings with it a residence component. Subdivision (A) specifies that registration must be within the city or county in which the registrant “is residing,” which defendant claims “assumes they have a residence.” Defendant’s suggested interpretation mistakenly equates the terms “residence” and “residing” for purposes of section 290. In subdivision (a)(1)(A) the term “residing” is not defined, but plainly refers to the jurisdiction in which the person is physically present or located, and encompasses in the succeeding paragraphs both transient registrants and those who have an established residence. Under section 290, “ ‘ “[d]epending on the circumstances, one may have a single place of residence or more than one place of residence or no residence.” ’ ” (People v. Edgar (2002) 104 Cal.App.4th 210, 216–217, quoting from People v. Horn (1998) 68 Cal.App.4th 408, 414.) To reinforce the distinction between “residing” and “residence,” subdivision (a)(1)(B) specified that a person may have “more than one residence address at which he or she regularly resides,” and delineated the registration requirements in the event of multiple residences. Further, the term “residence” was defined in subdivision (a)(1)(C)(vii), as “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.” (Italics added.) Nothing in subdivision (a)(1)(A) or any other provision of section 290 contradicts the plain, broad language of subdivision (a)(1)(D) that imposed the annual registration requirement on any “person” who has been ordered to register as a sex offender, both transients and those with a residence. Use of the unambiguous and all-inclusive term “person” in subdivision (a)(1)(D) indicates a legislative intent to cover everyone who must register pursuant to section 290, regardless of whether the person is a transient or has a residence. (See People v. Gandotra (1992) 11 Cal.App.4th 1355, 1365.)
We are not persuaded that the nearly identical annual registration requirements explicitly imposed by subdivision (a)(1)(C)(iii) on persons living as transients somehow restricts the reach of subdivision (a)(1)(D) to nontransients. Subdivision (a)(1)(C) separately described the more comprehensive registration duties that transient registrants must perform, including the duty to register annually. The repetition of the annual registration duties in subdivision (a)(1)(C)(iii), does not, in our view, evince a legislative intent to limit the scope of subdivision (a)(1)(D) to registrants with a residence. Rather, subdivision (a)(1)(D) serves the compelling interest of assuring that all persons who must register under the statute provide current information each year, even if it is difficult to classify them as either transients or persons with a residence. Section 290 “is intended to promote the ‘ “state interest in controlling crime and preventing recidivism in sex offenders.” ’ [Citation.]... ‘The purpose of section 290 is 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. [Citation.]’ [Citations.] Plainly, the Legislature perceives that sex offenders pose a ‘continuing threat to society’ [citation] and require constant vigilance.” (Wright v. Superior Court, supra, 15 Cal.4th 521, 527; see also People v. Balkin (2006) 145 Cal.App.4th 487, 491; People v. Poslof (2005) 126 Cal.App.4th 92, 102.) “The Legislature also reaffirmed ‘it is necessary to provide for continued registration’ to effectuate the statutory purpose of protecting the safety and general welfare of the public.” (Wright, supra, at p. 529.) “ ‘The statute is thus regulatory in nature, intended to accomplish the government’s objective by mandating certain affirmative acts. Compliance is essential to that objective; lack of compliance fatal....’ [Citation.]” (People v. McCleod (1997) 55 Cal.App.4th 1205, 1218.) “[S]ex offenders often have a transitory lifestyle or deliberately attempt to keep their movements secret.” (Wright, supra, at p. 529.) The surveillance objective of the statute would be compromised if an offender was not held accountable for failing to register annually just because the proof of the offender’s transient or residence status remained uncertain. (See People v. Horn, supra, 68 Cal.App.4th 408, 417.)
We conclude that subdivision (a)(1)(D) imposed an annual registration duty upon all sex offender registrants, not just those with an established residence. Therefore, the prosecution was not required to offer evidence that defendant had a residence to prove a violation of subdivision (a)(1)(D). Substantial evidence of defendant’s knowledge of the duty to register and the remaining essential elements of the offense is found in the record. (See People v. Chan (2005) 128 Cal.App.4th 408, 418–419.)
B. The Charge of a Violation of Section 290, Subdivision (a)(1)(D).
We turn to defendant’s contention that he was charged under the “wrong provision” of section 290, subdivision (a)(1)(D), and therefore “in violation of his right to a jury trial (U.S. Const, Amend. VI), he was denied a jury determination of the elements of the only offense for which he could be tried,” a violation of subdivision (a)(1)(C)(iii). Essentially, defendant is claiming that the prosecution was compelled to charge him with a violation of the more “specific provision” of section 290, subdivision (a)(1)(C)(iii), rather than under the “general provision” of subdivision (a)(1)(D).
As a threshold matter we summarily dismiss defendant’s assertion that his right to a “jury trial” or a “jury determination” of his guilt of a charge of the offense specified in subdivision (a)(1)(C)(iii) was somehow violated. If the rule needs articulation or clarification, we will gladly do so here: a defendant does not have the right to a jury trial for an offense with which he was not charged and of which he was not convicted.
That issue resolved, we direct our focus to the argument that the prosecution was required to charge and prosecute defendant with a violation of subdivision (a)(1)(C)(iii). Defendant “invokes the rule that, ‘ “where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute....” ’ [Citation.]” (People v. Powers (2004) 117 Cal.App.4th 291, 298; see also People v. O’Connor (1992) 8 Cal.App.4th 941, 946.) “Prosecution under a general statute is precluded when the facts of the alleged offense parallel the acts proscribed by a special statute.” (People v. DeLaCruz (1993) 20 Cal.App.4th 955, 958.) “ ‘[T]he Williamson rule is applicable when each element of the “general” statute corresponds to an element on the face of the “specific” statute. However, the converse does not necessarily follow. It is not correct to assume that the rule is inapplicable whenever the general statute contains an element not found within the four corners of the “special” law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the “special” statute will necessarily or commonly result in a violation of the “general” statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.’ ” (Id. at p. 962, italics omitted, quoting from People v. Jenkins (1980) 28 Cal.3d 494, 502.)
“The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.” (People v. Walker (2002) 29 Cal.4th 577, 586, italics added.) “[T]he inference that a specific statute constitutes an exception to a more general one is merely one tool by which a court may ascertain and effectuate legislative intent [citation]....” (People v. Johnson (2002) 28 Cal.4th 240, 246.) “ ‘The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply.’ [Citation.]” (People v. Powers, supra, 117 Cal.App.4th 291, 298–299; see also People v. Mitchell (2008) 164 Cal.App.4th 442, 459.)
Thus, defendant’s constitutional right to a jury trial on the more specific statute is not implicated.
We agree with defendant that the annual registration requirements specified in the two statutes are essentially identical, but a glaring exception in application exists: subdivision (a)(1)(D), applied to any “person” who has been ordered to register, whereas subdivision (a)(1)(C)(iii) applied only to a “transient” registrant as defined in subdivision (a)(1)(C)(vii). While the two provisions are, as defendant suggests, “applicable to the same conduct,” they are not applicable to the same offenders. A violation of subdivision (a)(1)(C)(iii) by a transient will also constitute a violation of subdivision (a)(1)(D); in contrast, a violation of subdivision (a)(1)(D) will often times not constitute a violation of subdivision (a)(1)(C)(iii) – that is, in any case where the violator is a nontransient. Put in the terms of the Williamson rule, a violation of the special statute will necessarily or commonly result in a violation of the more general statute, but the reverse is not true, and the elements of the general statute do not correspond to the elements set forth on the face of the special statute. The terms of subdivisions (a)(1)(D) and (a)(1)(C)(iii) are not identical; subdivision (a)(1)(C)(iii) contained a significant requirement that has no counterpart in subdivision (a)(1)(D): the defendant must be defined as a transient. (See People v. Walker, supra, 29 Cal.4th 577, 585.)
Of even greater significance to us in our evaluation of legislative intent is the factor that the two statutes fundamentally do not substantively conflict. Both subdivisions articulated the same annual registration requirements and impose the same penalties. The only distinction is in the classification of the registrant as transient or otherwise. “ ‘The principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled. [Citations.]’ [Citation.]” (People v. Alberts (1995) 32 Cal.App.4th 1424, 1428; see also People v. Price (1991) 1 Cal.4th 324, 385.) Where the statutes at issue are not inconsistent, both may be applied unless a contrary legislative intent appears. (People v. Wheeler (1992) 4 Cal.4th 284, 293; In re Ricardo A. (1995) 32 Cal.App.4th 1190, 1194–1195.) We find nothing in the legislative intent that militates against the prosecution of offenders under either of the provisions, depending upon the evidence of their status as registrants.
The general statute therefore does not run afoul of the rule that “ ‘the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears. [Citation.]’ [Citation.]” (People v. Duran (2004) 124 Cal.App.4th 666, 671, original italics deleted, italics added; see also People v. Jenkins, supra, 28 Cal.3d 494, 501–505.)
Where, as in the present case, the evidence as to the offender’s classification as a transient is ambiguous or conflicting, we think the Legislature intended to grant the prosecution the option of charging the defendant under either of the annual registration provisions. The prosecution is not required to elect between different offenses or counts in an accusatory pleading. (People v. Ryan (2006) 138 Cal.App.4th 360, 368.) “An accusatory pleading may charge different statements of the same offense. (§ 954.) As a general rule, ‘a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. “In California, a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’ [Citations.]” [Citation.]’ [Citation.]” (People v. Mitchell, supra, 164 Cal.App.4th 442, 460, italics omitted; see also People v. Smith (2007) 40 Cal.4th 483, 510; People v. Muhammad (2007) 157 Cal.App.4th 484, 490.) We certainly do not think the legislative intent was to force the prosecution to charge under the subdivision (a)(1)(C)(iii) transient provision, and risk a finding by the jury that the defendant was not a transient and was thereby effectively absolved from the annual registration requirements. Here, the prosecution elected to proceed with a charge that defendant violated subdivision (a)(1)(D), given the uncertainty over his classification as a transient under section 290. We conclude that subdivision (a)(1)(D) does not fatally conflict with subdivision (a)(1)(C)(iii), and therefore prosecution of defendant under the more general statute was not precluded. (People v. Spence (2005) 125 Cal.App.4th 710, 720.)
Of course defendant was not subject to punishment under both subdivisions. (People v. Pearson (1986) 42 Cal.3d 351, 359.)
II. The Finding that Count 1 is a Felony Offense.
Defendant also challenges the jury verdict on Count 1 on the ground that the finding of a felony conviction of a violation of subdivision (a)(1)(D) is not supported by the evidence. “A violation of the statute can be either a misdemeanor or a felony depending on whether the registrant’s underlying sex offense was a felony or misdemeanor. (§ 290, subds. (g)(1), (2); People v. Hofsheier (2006) 37 Cal.4th 1185, 1196, 39 Cal.Rptr.3d 821, 129 P.3d 29.) Subdivision (g)(1) provided for imprisonment in county jail if the registerable offense is a misdemeanor, while subdivision (g)(2) provides for imprisonment in state prison if the registerable offense is a felony. Section 290, subdivision (g)(2) is a mandatory sentencing provision that requires the imposition of a felony sentence whenever a person is required to register based on an underlying felony sex offense.” (People v. Gonzalez (2007) 149 Cal.App.4th 304, 308; see also People v. Hofsheier, supra, at p. 1196.) When “the person must register because of a felony conviction, violating these requirements is itself a felony. (§ 290, subd. (g)(2); see Wright v. Superior Court (1997) 15 Cal.4th 521, 523–524 [63 Cal.Rptr.2d 322, 936 P.2d 101].)” (People v. Britt (2004) 32 Cal.4th 944, 951.) As a “mandatory sentencing provision,” section 290, subdivision (g)(2), exclusively provides for felony punishment if the underlying prior conviction is for a felony, and does not give the trial court discretion to treat any registration violation as misdemeanor. (People v. Gonzalez, supra, at pp. 308, 307, 309.)
Defendant was charged with a felony violation of subdivision (a)(1)(D), based on his alleged commission of a prior “felony conviction.” At trial, a stipulation was entered that defendant “has previously been convicted of an offense that requires him to register as a sex offender pursuant to Penal Code section 290.” Although the trial court’s instruction on the charge specified only that “defendant was previously convicted of a sex offense for which the defendant is required to register,” the jury found defendant guilty of a “felony” violation of subdivision (a)(1)(D). Defendant claims that he neither admitted, nor did the prosecution offer evidence, that his underlying sex offense was a felony.
We commence our inquiry by expressing agreement with defendant’s assertion that he was entitled to a jury determination of the issue of whether his prior conviction was a felony. (See People v. Bautista (2005) 125 Cal.App.4th 646, 655; People v. Taylor (2004) 118 Cal.App.4th 11, 27.) The “second sentence of section 28(f)” of the California Constitution distinctly provides: “ ‘When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.’ ” (People v. Valentine (1986) 42 Cal.3d 170, 173, italics omitted.) Defendant did not waive his right to a jury trial on the allegation of a prior felony conviction, which was an element of a felony violation of subdivision (a)(1)(D). We therefore must determine if the evidence presented to the jury established that the prior conviction qualified to prove his guilt of a current felony offense.
Although the prosecution did not adduce any evidence at trial of the nature of defendant’s prior conviction, we find that the stipulation of the parties adequately proves the qualifying felony conviction. “Courts may interpret stipulations to determine their effect.” (City of Martinez v. Workers’ Comp. Appeals Bd. (2000) 85 Cal.App.4th 601, 621.) Here, the reason for the stipulation was to avert prejudice to defendant from any articulation of the nature of his prior “288(a)” conviction to the jury. The defense objected to admission of the abstract of judgment of the prior conviction by the prosecution on the ground that the evidence was unduly prejudicial (Evid. Code, § 352). Instead, defendant offered to stipulate that he “does have to register as a sex offender pursuant to Penal Code section 290,” but persisted in the contention that any “information beyond that, in this case, would be prejudicial.” The prosecution pointed out the rule that “[i]n the case of a violation of section 290,” the jury “need not be informed of the defendant’s specific sex offense,” but “unless the jurors are informed that the defendant’s duty to register derives from his status as a sex offender, they will be unaware of the public policy underlying the registration statute.” (People v. Cajina (2005) 127 Cal.App.4th 929, 934.) The prosecutor offered to “accept a stipulation that [defendant] has previously been convicted of a felony sex offense, without going into the specifics of what it is,” and the defense agreed if the documents relating to the prior conviction, including the abstract of judgment, were not admitted. (Italics added.) The language of the stipulation as expressed at trial, however, did not mention a felony conviction, but rather merely a conviction “that requires him to register as a sex offender pursuant to Penal Code section 290.
The court in Cajina added: “If the jury lacks a basis for the reason the state subjects certain people to registration requirements, there is the risk it will view the People’s case as an oppressive, unnecessary intrusion on the defendant’s liberty, resent the People for prosecuting it, and consequently refuse to consider whether the defendant’s failure to register was sufficiently morally blameworthy to warrant punishment.” (People v. Cajina, supra, 127 Cal.App.4th 929, 934.)
Despite the lack of explicit reference to a felony, we find that the clear intent and hence the effect of the stipulation was to prove the charged prior felony conviction. The stipulation was entered at the behest of the defense and as a mechanism to prove the charged underlying element of the prior felony conviction without undue prejudice to defendant. The prosecution would certainly not have agreed to the stipulation – and accompanying exclusion of documentary evidence of the prior conviction – if the effect of it was to leave the proof of the alleged prior conviction deficient. (See City of Martinez v. Worker’ Comp. Appeals Bd., supra, 85 Cal.App.4th 601, 621–622; Burrows v. State of California (1968) 260 Cal.App.2d 29, 33.) From defendant’s perspective, he received the benefit of the stipulation, and cannot now complain that it fails to prove the essential element of the charged offense it was specifically intended to prove without the necessity of admission of documentary evidence prejudicial to him. We therefore conclude that the element of a prior felony conviction within the meaning of subdivision (g)(2), was established by the stipulation.
III. The Instruction and Finding on the Charge of Failing to Update Registration by a Transient.
Defendant next complains that the trial court gave an erroneous instruction on the charge in Count 2 of violation of the 30-day transient reregistration requirement of subdivision (a)(1)(C)(i), which provides that a transient must register within five working days of release from incarceration, then reregister “[b]eginning on or before the 30th day following initial registration upon release,” and no less than “once every 30 days thereafter.” The registration must be “with the chief of police of the city in which he or she is physically present within that 30-day period, or the sheriff of the county if he or she is physically present in an unincorporated area or city that has no police department.... A transient must reregister no less than once every 30 days regardless of the length of time he or she has been physically present in the particular jurisdiction in which he or she reregisters. If a transient fails to reregister within any 30-day period, he or she may be prosecuted in any jurisdiction in which he or she is physically present.”
The trial court’s instructions to the jury on the subdivision (a)(1)(C)(i) charge included the elements that defendant “was without a residence address in the City of Fairfield,” and “willfully failed to update his registration within 30 days with the Police Chief of the City of Fairfield.” In a rather rambling, dual-level argument, defendant maintains that his guilt of a misdemeanor violation of subdivision (a)(1)(C)(i) required evidence that he “was present” in Fairfield some time “between March 6 and April 11,” 2007. He challenges the evidence of his presence in Fairfield during the requisite time period. He also claims that the court erred by neglecting to instruct the jury on an “additional element” of the subdivision (a)(1)(C)(i) offense: that he was “physically present in the City of Fairfield within a 30-day period during which he did not register.” Defendant asserts that the instructional omission “as to an element of the offense” deprived him “of a jury trial of that question.”
The Attorney General points out that defendant failed to request an instruction on physical presence or object to the instructions, despite entreaties from the trial court to suggest additional instructions. “Normally, a defendant forfeits the right to appeal alleged errors ‘ “by failing to make an appropriate objection in the trial court; however, an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. [Citation.] The cases equate ‘substantial rights’ with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]” [Citation.]’ [Citation.]” (People v. Christopher (2006) 137 Cal.App.4th 418, 426–427, italics omitted; see also People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) “Generally, whether or not an appellate court should excuse the lack of a trial court objection ‘is entrusted to its discretion.’ [Citation.]” (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.) If defendant’s challenge to the instruction on subdivision (a)(1)(C)(i) is sustained, his substantial rights would have been affected. We therefore find no invited error or forfeiture of the issue, and exercise our discretion to proceed to the substance of defendant’s objections to the instruction. (See People v. Guerra (2006) 37 Cal.4th 1067, 1134; People v. Gray (2005) 37 Cal.4th 168, 235.)
Penal Code section 1259 provides in pertinent part: “The appellate court may... review any instruction given..., even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
We also confront the issue to resolve any incipient claim of inadequate assistance of counsel. (See People v. Felix (2008) 160 Cal.App.4th 849, 858; People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585; see also Sandstrom v. Montana (1979) 442 U.S. 510, 514; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.) “A court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law.” (People v. Andrade, supra, at p. 585.) “When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also Estelle v. McGuire (1991) 502 U.S. 62, 70–75; People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.)
We find no prejudicial error in the trial court’s instruction on the elements of the crime charged in Count 2. Subdivision (a)(1)(C)(i) specified that a “transient” must register “once every 30 days regardless of the length of time he or she has been physically present in the particular jurisdiction in which he or she reregisters.” By giving an instruction to the jury to find guilt only if defendant was “in the City of Fairfield,” had no residence there, and willfully failed to update his registration every 30 days with the Fairfield Police Chief, the court conveyed the essential element of subdivision (a)(1)(C)(i) that the defendant must be physically present in the jurisdiction. While we agree with defendant that explicit use of the language “physically present” in an instruction on subdivision (a)(1)(C)(i) may have been preferable, we find that the trial court’s instruction effectively communicated the requirement of proof of defendant’s presence in the jurisdiction. We are persuaded that the jury understood the burden of the prosecution to prove that defendant had corporeal presence in the City of Fairfield and failed to reregister there every 30 days as mandated by subdivision (a)(1)(C)(i).
Further, omission of the “physically present” language from the instruction was harmless beyond a reasonable doubt under the facts of the present case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. LeCorno (2003) 109 Cal.App.4th 1058, 1066–1067.) Considerable evidence was presented in the form of defendant’s own testimony, his statements to Detective Shaffer, his prior registrations in Fairfield, and the testimony of his sister, that he was physically present in Fairfield and Vacaville regularly after his last registration on March 6, and before his arrest on May 11, 2007, during which he twice failed to reregister as required by subdivision (a)(1)(C)(i)—not only in Fairfield, but anywhere else. Subdivision (a)(1)(C)(i) imposed the duty on a transient to reregister in any city in which he or she is physically present “within that 30-day period,” “regardless of the length of time” spent in the jurisdiction. Thus, if defendant was present in either Fairfield or Vacaville, as the evidence indisputably indicates he was, he was obligated to reregister in one of those cities. We conclude that beyond a reasonable doubt defendant would have been convicted of a violation of subdivision (a)(1)(C)(i) if the “physically present” language had been added to the instruction. No prejudicial instructional error occurred.
IV. The Sentence Imposed on Count 2.
Defendant’s final contention is that the trial court imposed an unauthorized concurrent sentence on Count 2 of 16 months in state prison. He maintains that the authorized sentence for a misdemeanor violation of subdivision (a)(1)(C)(i), is “between 30 days and six months.” The Attorney General concedes, and we agree, that pursuant to former subdivision (g)(6), a misdemeanor violation of subdivision (a)(1)(C)(i) “shall be punished by imprisonment in a county jail at least 30 days, but not exceeding six months.”
DISPOSITION
Accordingly, the concurrent sentence of 16 months on Count 2 is reversed, and the case is remanded to the trial court for resentencing on that count. In all other respects the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.