Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB050743. Donna G. Garza, Judge. Affirmed in part and reversed in part with directions.
Daniel J. Kessler, 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, and Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury found defendant and appellant Raynard Vincent Darrett guilty of failing to register as a sex offender (Pen. Code, § 290, subd. (a)(1)(C)(i), count 1) and failing to update his annual sex offender registration (§ 290, subd. (a)(1)(D), count 2). Defendant admitted he had a prior strike conviction for committing a lewd act upon a child in violation of section 288, subdivision (a) (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and stipulated that such conviction required lifetime sex offender registration. The trial court sentenced him to a total term of four years in state prison, which consisted of two years on count 2, doubled because of the strike conviction, plus a 180-day county jail term on count 1, which the court ordered to run concurrent to the term on count 2.
All further statutory references will be to the Penal Code unless otherwise noted.
Section 290 has subsequently been amended and no longer contains section 290, subdivision (a)(1)(C)(i) or (a)(1)(D). For purposes of clarity, rather than referring to “former section 290,” we will simply refer to section 290 in this opinion.
On appeal, defendant contends that 1) the trial court gave an overly broad jury instruction on count 2, which relieved the prosecution of its burden to prove he was a resident of California, and 2) there was insufficient evidence to prove he willfully failed to register as a sex offender in counts 1 and 2. In evaluating this case, we discovered other issues, which we asked the parties to address in supplemental briefing. We will address those issues along with the issues raised by defendant. Ultimately, we reverse the conviction in count 2 for insufficient evidence. However, we affirm defendant’s conviction in count 1.
FACTUAL BACKGROUND
On May 15, 1990, defendant was convicted of violating section 288, subdivision (a) (lewd act upon a child), a felony requiring lifetime sex offender registration.
The record shows that defendant registered using various addresses in Fresno, California, on June 4, 1993; September 29, 1993; October 1, 1993; January 6, 1995; March 21, 1995; September 15, 1995; February 16, 1996; June 20, 1997; March 8, 1999; and December 1, 2004. He registered on April 19, 1999, from Atascadero State Hospital. Defendant registered at the sheriff’s station in Highland, California (the Highland station) on December 21, 2004, and provided both his sister’s address in Highland and his mother’s address in Fresno. He subsequently registered at the Highland station with only his sister’s address on January 26, 2005, and February 10, 2005. Defendant’s sister moved from her residence in Highland on April 26, 2005.
In February 2005, defendant became employed as a truck driver. His truck yard was in Bloomington, California. On May 5, 2005, he registered as a transient at the Highland station and acknowledged the requirements that as a transient, he was required to register every 30 days even if he went out of state. He was also required to register annually within five working days of his birthday. Defendant’s birthday was May 31.
On June 2, 2005, Michelle Juarez, the sex offender registration clerk for the Highland station, asked a deputy to contact defendant to remind him to register. The deputy contacted defendant’s terminal supervisor in Bloomington and also spoke with the director of the company that defendant worked for. Defendant was apparently on the road, so the director sent a message to defendant to have him contact Juarez.
Defendant called Juarez on Friday, June 3, 2005, and said he would not be able to come in to register because he was in Montana. Juarez told defendant he had to register, and if he failed to do so, he would be eligible for arrest. Juarez also told defendant that he could register wherever he was located. Defendant called the police department in Bozeman, Montana, and officers initially said they could not help him since Montana did not register transients. He called the Montana Attorney General’s Office to see if there was another location where he could register. The person with whom defendant spoke said the Bozeman police could not refuse him and instructed defendant to go to the police station. That day, defendant went to the Bozeman Police Department, and the officer there said he could register defendant but not until the following Thursday, June 9, 2005. Only detectives did the registrations, not other officers. The detectives would register sex offenders any day of the week but apparently preferred to do registrations on Thursdays from 1:00 p.m. to 3:00 p.m. However, if an individual came in on any day, some effort would be made to find a detective to register that person.
Defendant did not return to the Bozeman Police Department on Thursday, June 9, 2005. He instead returned in the late afternoon on Friday, June 10. Deputy Chief of Police Bill Dove did not typically do the registrations, but since he was one of the few people left in the building, he instructed defendant on how to register. Defendant told Deputy Chief Dove he was staying at a motel, and Deputy Chief Dove told defendant he would need a permanent address to register. Defendant said all he had was a motel room for the night since he was a truck driver. Deputy Chief Dove advised him to contact the detective who typically handled registrations and provide him with a permanent address, or else defendant would not be in compliance with Montana law. Defendant told Deputy Chief Dove he wanted to find a residence in Montana. Defendant completed the fingerprint and photographing process but never returned to provide a permanent address.
Detective Roberto Lomeli began investigating defendant on June 22, 2005. He contacted defendant’s employer and spoke with the director of personnel. The director of personnel advised him that defendant was assigned to a specific truck number and that each truck had Global Positioning Satellite (GPS) technology. Thus, he had records of where defendant’s truck had been on certain dates. The director of personnel told Detective Lomeli that defendant and his truck were at the truck yard in Bloomington on May 25 through May 27, 2005. Thus, defendant was within approximately 10 miles of the Highland station during those dates.
Detective Lomeli contacted defendant at the Bloomington truck yard on June 28, 2005, and interviewed him. At first, defendant told the detective he registered as a sex offender in Bozeman but could not recall his exact address there. Defendant then admitted that he did not complete the registration process because he was a transient and Montana did not accept transients. Defendant told Detective Lomeli that he left a voicemail for Juarez on May 30 or May 31, 2005, informing her that he was going to move. Detective Lomeli asked defendant why he did not register five days prior to his birthday, and defendant said he had already decided he was going to move to Las Vegas or Fresno. Then Detective Lomeli asked defendant why he went to Bozeman to register, and defendant said he did so because Juarez told him she would issue a warrant for his arrest if failed to register. Then defendant said he was thinking of moving to Bozeman. Detective Lomeli arrested defendant for not complying with his sex registration requirement.
At trial, defendant testified on his own behalf. He admitted that he was aware of his obligation to register every year within five working days of his birthday. He further testified that although the police department instructed him to return on Thursday, June 9, he did not return that day because Officer Brandon Olson called him on June 8 and said that if defendant could not make it to the station on June 9, he would leave a couple of detectives at the station on June 10 to register him.
On cross-examination, defendant testified that he was in the Bloomington truck yard May 25 through May 27, 2005, and admitted that he knew he could have gone in to register on any one of those days to be in compliance with his requirements. He also testified that he knew he had to register every 30 days and that he was coming up on his 30 days on June 4. Defendant further admitted he never returned to give a permanent address to the Bozeman police.
Defendant originally registered as a transient on May 5, 2005. Since May had 31 days, his 30-day requirement was due on June 4, 2005.
On redirect, defendant testified that in May and June 2005, he did not have a home address; he slept in his truck since he was on the road almost every day. He said he left Bloomington on May 27, drove to Fresno, and stayed at his mother’s house until May 29. He was then asked why he did not register before he left the Highland/Bloomington area on May 27 since he knew his 30-day registration was due on June 4. Defendant said there was “no really significant reason why [he] didn’t go in.” He testified that he left a voicemail message for Juarez on May 31 telling her that he was not going to the Highland station to register. Defendant said he left the message because at that time, he had decided that 30 days was “just too much for [him] to keep [going] back to California to register.” Defendant also told Juarez that he decided to move back to Fresno or out of state.
At trial, Patrick Foran, who worked for defendant’s employer and was in charge of all computer and satellite communications with the trucks, also testified. He stated that the company had a small office and truck yard in Bloomington where the company provided fuel for their trucks. Truckers could go there to use the facilities (showers, etc.) and lay over. Foran further testified that according to his records, defendant was in Bloomington on May 27, 2005, Fresno on May 28 and 29, and Weed, California, on May 30. Defendant and his truck then proceeded to Oregon, Washington, and Montana. Defendant was in Bozeman on June 3, for about three to four hours, on June 10 from about 3:00 p.m. until the next morning at 11:00 a.m., and on June 18 for about two hours.
At trial, Officer Olson also testified. He said he spoke with defendant a few times on the telephone and advised defendant that he had to provide a permanent address to register in Montana. Officer Olson testified that Montana did not have a provision for registering transients. Officer Olson further testified that he was aware defendant might not be able to register on Thursday, June 9; however, he did not directly respond to the question of whether he told defendant that he could come in on Friday, June 10, if defendant could not make it in on Thursday.
ANALYSIS
I. Count 2 Must Be Reversed
Defendant claims his conviction for failing to update his annual registration (§ 290, subd. (a)(1)(D), count 2) must be reversed because the court erred by instructing the jury with a modified version of Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1170. According to defendant, the language in the second and fourth elements of the instruction given was overbroad and relieved the prosecution of its burden to prove that he was a California resident. Thus, defendant argues that according to the language of the modified CALCRIM No. 1170, the jurors could have found him guilty if they concluded he temporarily resided anywhere in the United States, or even the world. We disagree with defendant’s argument. However, we agree that his conviction in count 2 should be reversed for a different reason; there was insufficient evidence to support the conviction.
A. Background
At the time of the charged offenses in 2005, section 290 required persons convicted of specified sex offenses to register for the rest of their lives with the local police department or sheriff’s office in the jurisdictions where they lived, to reregister within five working days of any change of address, and to provide an update every year within five working days of their birthdays. (§ 290, subd. (a)(1)(A) & (a)(1)(D).) The elements of section 290, subdivision (a)(1)(D) were set forth in CALCRIM No. 1170. The unmodified version of that instruction which was originally proposed provided, in part: “To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant was previously convicted of/[in] violation of Penal Code [section] 288[, subdivision] (a) Lewd Act Upon a Child; Counsel has stipulated to this fact and you must accept it as proved.
“2. The defendant resided in Highland[,] California[,] a city with no police department in San Bernardino County, California; or within any city/county in which he temporarily resides[.]
“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 his birthday wherever he resided;
“AND
“4. The defendant willfully failed to annually update his registration as a sex offender with the sheriff of that county or the chief of police of the [city] within five working days of his birthday wherever he resided[.]”
When discussing the proposed jury instructions, defense counsel requested that CALCRIM No. 1170 be modified to add the following language to the fourth element: “whether permanently or temporarily.” The parties had a discussion off the record and came to an agreement. They then modified the third element to read, “wherever he resided; temporarily or permanently.” They also added the same language to the end of the fourth element.
B. The Court Properly Instructed the Jury
Defendant now complains that the second and fourth elements in the instruction given eliminated the requirement that the prosecution prove he resided in a certain city or county in California. He asserts that the modified instruction provided he could be convicted as long as he willfully failed to register with police authorities “wherever he resided temporarily or permanently.” The thrust of defendant’s argument appears to be that only a California resident could violate section 290, subdivision (a)(1)(D), but under the modified instruction, he could have been convicted as long as the jurors concluded he temporarily resided anywhere. The question is whether there is a reasonable likelihood that the jury understood the instruction as the defendant asserts. (See, e.g., People v. Mickey (1991) 54 Cal.3d 612, 672; People v. Kelly (1992) 1 Cal.4th 495, 525.)
At the outset, we note that defense counsel requested the wording of the modified instruction. Therefore, he never raised the objection that the second and fourth elements failed to explicitly read “wherever [defendant] resided, temporarily or permanently, in California,” or something to that effect. Furthermore, although the word “California” was not at the end of the second and fourth elements of the instruction given, a reasonable juror would have understood the instruction referred to any city or county in California. The second element the prosecution had to prove read in its entirety: “The defendant resided in Highland[,] California[,] a city with no police department in San Bernardino County, California; or within any city/county in which he temporarily resides[.]” (Italics added.) Given the requirement that the prosecution first prove defendant resided in Highland, California, it would not be logical that, in the alternative, it could prove that defendant resided in any city or county in the United States or the world. Moreover, the modified instruction, read as a whole, conveyed the requirement that the jury had to find that defendant resided somewhere in California, not just anywhere. Thus, there was no jury instruction error.
C. There Was Insufficient Evidence that Defendant Had a Residence
The jury found defendant guilty of violating section 290, subdivision (a)(1)(D) in count 2, which required him to “register annually, within five working days of his . . . birthday, to update his . . . registration with the entities described in subparagraph (A).” The entities listed in subparagraph (A) included the “chief of police of the city in which he . . . [was] residing . . . .” (§ 290, subd. (a)(1)(A).) Section 290 defined “residence” 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 . . . houses . . . and recreational and other vehicles.” (§ 290, subd. (a)(1)(C)(vii), italics added.) Thus, this annual registration requirement applied to sexual offenders who had an address in California at which they regularly resided. Accordingly, the prosecution was required to show that defendant regularly resided in California. There was insufficient evidence to support this conviction since the prosecution failed to establish this element beyond a reasonable doubt.
We note the People’s claim in its supplemental letter brief that “[t]he annual update provision in [section 290,] subdivision (a)(1)(D) applied to everyone and did not exclude transients . . . .” (Italics added.) We disagree. The language of the statute clearly provides that subdivision (a)(1)(D) applied only to California residents, since it required the offender to register annually with the “chief of police of the city in which he . . . [was] residing . . . .” (§ 290, subd. (a)(1)(A) & (a)(1)(D).) A transient, by definition, “means a person who has no residence.” (§ 290, subd. (A)(1)(C)(vii).) Moreover, the People’s interpretation of section 290, subdivision (a)(1)(D) would render subdivision (a)(1)(C)(iii), which specifically requires a transient to register annually, superfluous.
1. Standard of Review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
2. The Evidence Was Insufficient
Defendant was a truck driver and was therefore gone a lot, including out of state. He testified that in May and June 2005, he did not have a home address, and that he slept in his truck because he was “on the road practically every day.” There was no evidence presented that contradicted this assertion. The prosecution’s theory of the case was that defendant falsely registered as a transient in May 2005. The prosecution argued that defendant actually had several residences in California, including his mother’s home in Fresno, the truck yard in Bloomington, and his sister’s home in Highland. However, the evidence failed to show that defendant regularly resided at any of these places. (§ 290, subd. (a)(1)(C)(vii).) As to his mother’s home, the record shows that defendant only registered using that address twice—on December 1, 2004, and December 21, 2004. During the time period relevant to the conviction, which would be the months of May and June 2005, the evidence showed that defendant only stayed at his mother’s home from May 27 to May 29. Defendant admitted that he would “pass through” Fresno, and “stop by the house, grab something to eat, shower, and either just leave the next night or the same night.” However, “[t]he term ‘residence’ in section 290 connotes ‘“more than passing through or presence for a limited visit[].”’ [Citation.]” (People v. Cluff (2001) 87 Cal.App.4th 991, 1003.) The evidence showed that defendant listed his mother’s address as his home address when he checked into a motel in Bozeman, Montana, and that he received a cell phone bill for the period from May 25 to June 24, 2005, at that address. However, this evidence merely showed that defendant used his mother’s address for various purposes, such as receiving mail. The evidence did not demonstrate that defendant actually resided at his mother’s home for any period of time.
As to the Bloomington truck yard, Foran testified that it was a place where truckers could go to get fuel, use the facilities, and stay for a layover. The evidence showed only that defendant was at the Bloomington yard on May 25 and May 26, 2005, before commencing a road trip on May 27. Defendant proceeded to drive to Fresno and Weed, California, and then Oregon, Washington, and Montana. He did not return to Bloomington until June 28, the day he was arrested. This evidence did not by any means establish that defendant regularly resided at the truck yard.
Finally, the evidence failed to support the prosecution’s claim that defendant had a residence in Highland. Defendant’s only connection to Highland was his sister. The evidence showed that on December 21, 2004, defendant registered at the Highland station for the first time and listed his mother’s address in Fresno and his sister’s address in Highland as a concurrent registration address. He was apparently just visiting his sister at that time. The next time he registered at the Highland station with his sister’s address was on January 26, 2005. Defendant testified that he visited his sister in Highland, but since he was going to be there more than five days, he had to register at the police station there. Thus, he registered using his sister’s address. However, his sister moved from her residence in Highland on April 26, 2005. Since defendant could no longer use her address (or stay with her there), he registered as a transient on May 5, 2005. Defendant had no connection with Highland after his sister moved, and there was no evidence that he regularly resided anywhere in Highland after such time.
Furthermore, contrary to the theory at trial that defendant had a California residence, the prosecutor concluded her closing argument by asking the jury to find defendant guilty of failing to register as a transient. The jury did just that by finding defendant guilty in count 1 of violating section 290, subdivision (a)(1)(C)(i), which required a transient to register with the chief of police of the city in which he was physically present once every 30 days. In other words, the jury clearly found that defendant was a transient in count 1, thus making the jury’s finding in count 2, that defendant failed to register annually as a California resident (§ 290, subd. (a)(1)(D)), inconsistent.
We conclude there was insufficient evidence that defendant regularly resided at an address in California. Therefore, we reverse defendant’s conviction in count 2.
II. There Was Sufficient Evidence to Show that Defendant Willfully Failed to Register
In his supplemental opening brief, defendant argues there was insufficient evidence to prove he willfully failed to register as a sex offender. Defendant contends that his failure to meet his registration requirement was not willful since he attempted to register in Bozeman. He claims that because Montana did not have a provision for registering transients, he “could not comply based on factors beyond his control.” Defendant’s argument entails both counts 1 and 2. However, in light of our conclusion that count 2 must be reversed (see § I, ante), we will only address defendant’s argument with regard to count 1. We conclude the evidence demonstrated that defendant’s failure to meet his 30-day registration requirement was willful.
Pursuant to section 290, subdivision (a)(1)(C)(i), “[b]eginning on or before the 30th day following initial registration upon release, a transient must reregister no less than once every 30 days thereafter. A transient shall register with the chief of police of the city in which he or she is physically present within that 30-day period . . . .” A person must willfully fail to comply with the requirement in order to be convicted of the offense. (§ 290, subd. (g)(6).)
Defendant last registered as a transient at the Highland station on May 5, 2005. Thus, he was required to reregister within the next 30 days, or by June 4, since May had 31 days. (§ 290, subd. (a)(1)(C)(i).) When defendant registered as a transient, he initialed the portion of the form indicating that he read the registration requirements. In doing so, he acknowledged the requirement that he had to update his registration information “at least once every 30 days.” Moreover, at trial, defendant testified that he knew that he had to register every 30 days, and that 30 days after May 5 was June 4. Nonetheless, the evidence showed that defendant did not plan on registering by that date. At trial, defendant was asked why he did not register before he left the Highland/Bloomington area on May 27, knowing that his 30-day registration was due on June 4. Defendant said there was “no really significant reason why [he] didn’t go in.” Defendant testified that he left a voicemail message for Juarez on May 31, telling her that he was not going in to the Highland station to register. He said he had decided that 30 days was “just too much for [him] to keep [going] back to California to register.” Defendant also told Juarez that he decided to move back to Fresno or out of state. However, there was no evidence that defendant ever moved out of California.
Moreover, the evidence showed that defendant began his attempt to update his registration only after Juarez contacted him on June 3, 2005, to tell him he had to register or else he would be eligible for arrest. Defendant told her he would not be able to come in to register because he was in Montana, so Juarez instructed him to register wherever he was located. The Bozeman police initially told defendant on the telephone that they did not register transients, but when defendant went to the station in person, they said they could register him. Defendant testified the Bozeman police said they could not do the registration that day (June 3) but told him to return on Thursday, June 9, between 1:00 p.m. and 3:00 p.m., to register. However, defendant failed to return that day, apparently because he was traveling that day. He returned the following day to start the registration process. Deputy Chief Dove testified that he instructed defendant to provide a permanent address in Montana, or else he would not be in compliance with the law. Defendant did not give a permanent address that day, and he never returned to provide one. Thus, although defendant did make some efforts to register, as he asserts, he never made the effort to complete the registration process in Montana. Even if he had returned with a permanent address, it would have been long past the due date of June 4.
Additionally, we note the GPS records indicated that defendant left Montana on June 3, 2005, and then made various stops in Indiana, Michigan, Illinois, and Minnesota, before returning to Montana on June 10. Yet there was no evidence that defendant tried to register as a transient in any of those states, in order to meet his 30-day requirement.
In sum, although defendant knew he was required to register by June 4, 2005, he failed to do so. Once he found out on June 3 that Montana did not register transients and that he would need a permanent address to register there, he had several options: 1) he could have returned to California to register by June 4; 2) he could have registered in whatever state he was in on June 4; or 3) he could have at least called Juarez to inform her of his predicament and asked her what to do. He did not do any of these things. Thus, contrary to defendant’s claim on appeal that he could not comply with his registration requirement “based on factors beyond his control”, defendant could have complied. Viewing the evidence in the light most favorable to the judgment, as we must (People v. Bolin, supra, 18 Cal.4th at p. 331), we conclude there was sufficient evidence that defendant willfully failed to fulfill his 30-day sex offender registration requirement.
DISPOSITION
The judgment is reversed as to count 2 (§ 290, subd. (a)(1)(D)) and affirmed in all other regards. The trial court shall amend the abstract of judgment to reflect reversal of defendant’s count 2 conviction and sentence. The trial court shall then forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: GAUT, J., KING, J.