Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR911627
Ruvolo, P. J.
I.
Appellant Anthony Stephen Gevas appeals from his conviction for failing to register as a sex offender. (Pen. Code, § 290, subd. (a).) He claims that the trial court abused its discretion and denied him due process under the federal Constitution in refusing to consider as a mitigating factor at sentencing the fact that appellant had authored an unmailed letter to the Clearlake police disclosing his alternative residential address. We affirm.
All statutory references are to the 2007 version of the Penal Code in force at the time of the charged offenses, unless otherwise indicated. (See former §§ 290 [Stats. 2007, ch. 130, § 187, eff. Jan. 1, 2007], 667.5 [Prop. 83, § 9, approved Nov. 7, 2006, eff. Nov. 8, 2006], 1203 [Stats. 2006, ch. 337, § 38 (S.B. 1128) eff. Sept. 20, 2006].) All further statutory references are to the Penal Code.
II.
A first amended information (FAI) was filed by the Lake County District Attorney on December 7, 2007, charging appellant with five separate counts of failing to register. (§ 290, subds. (a)(1)(A)-(a)(1)(B) & (f)(1).) The FAI also alleged that appellant had suffered five separate prior prison terms, within the meaning of section 667.5, subdivision (b), and that appellant had suffered five prior felony convictions making him ineligible for probation. That same day, appellant entered a guilty plea to one count (count 5) of failing to register (§ 290, subd. (a)(1)(B)), which included Harvey and Cunningham waivers. In doing so, appellant acknowledged that his plea was “open,” in that no promise had been made to him regarding the sentence he would receive, and that he would not be granted probation unless the court made a finding at sentencing that his was an unusual case where the interests of justice would be best served by such a grant.
People v. Harvey (1979) 25 Cal.3d 754.
Cunningham v. California (2007) 549 U.S. 270.
Prior to sentencing, appellant’s counsel submitted a “Sentencing Brief/Statement in Mitigation” admitting that appellant was eligible for probation only upon a finding that the case was “unusual” (§ 1203, subd. (e)(4)), but arguing such was the case in this instance. In making this argument, counsel pointed out that appellant had registered a number of times in the past, and that the current conviction involved a “technical violation” of the registration laws. Counsel explained that appellant had written a letter to law enforcement alerting police to his concurrent address which was never mailed, and may have “ended up at his father’s house.” The letter to the Clearlake Police Department purportedly signed by appellant on June 3, 2006, in which he reported a concurrent address, was attached to counsel’s brief.
A probation report was filed prior to sentencing, which recommended that probation be denied and appellant be sentenced to the aggravated term of three years’ state prison. The report chronicled appellant’s 20-year criminal history which included a conviction for unlawful sexual intercourse with a minor (§ 261.5), and three separate convictions for indecent exposure (§ 314, subd. (1)). Also, in 2001 appellant had suffered a prior conviction for failure to register as a sex offender (§ 290, subd. (g)(2)).
The report confirmed that between May and June 2006, appellant was living with a female named Kristi Heller, and that he failed to advise police of this new address as required by law. According to appellant’s statement quoted in the probation report, he did not register at the location because “Kristie” was living in Section 8 housing, and it was a violation of “section 8 rules” for appellant to live there with her. Nevertheless, appellant concluded that since Kristi’s address was “only a location” it would not affect her Section 8 housing rights. Therefore, he decided to write a letter to the Clearlake Police Department advising it of this address, but the letter, which he gave to his father to mail, was never sent. Apparently, the letter was “burried [sic]” under other paperwork, and appellant “got in a rush and to [sic] many things going at once.” He acknowledged that the fault was his own “for not taking my responsibility serious,” but asked the court for leniency.
The trial court commenced the sentencing hearing on February 11, 2008, indicating that it had read and considered both the probation report and defense counsel’s sentencing brief. Defense counsel made an “offer of proof” concerning the written, but unmailed, letter authored by appellant. The prosecutor objected on relevancy grounds, noting that the letter was written in June after appellant had been in violation of the registration laws since May, and that the statute required in-person notification to law enforcement. The court sustained the objection to the contents of the letter stating: “I understand he alleged that he wrote one. I get that from both the probation officer’s report and the defense brief. But I think the contents of the letter since it was not mailed [are] irrelevant.” After hearing further from defense counsel, the court reiterated its ruling: “I’ll continue to sustain the objection because I think the contents of the letter are inadmissible. I understand that, again, that he claims that he prepared a letter and that it wasn’t mailed through his fault or the fault of someone else. But I don’t think what’s set forth in that letter has got any relevance.”
The trial court then invited counsel to address the issue of probation. At the conclusion of counsels’ remarks, the court ruled as follows:
“Pursuant to Penal Code section 1203[,] subdivision (e)(4), the Court is prohibited from granting probation except on a finding that this is an unusual case and the interests of justice would best be served by a grant of probation. [¶] In looking at the criteria set forth in court rule 4.413, the Court finds that the circumstances of the limitation are not substantially less serious than those typically present. The current offense is less serious than some of the priors and of equal seriousness with other priors that are the cause for the limitation. [¶] The defendant did not participate in this crime because of great provocation, coercion, or duress not amounting to a defense. [¶] The crime was not committed because of a mental condition not amounting to a defense. [¶] The defendant is neither youthful nor aged. [¶] And he has a significant record of prior convictions. [¶] In weighing those factors, this is clearly not an unusual case and probation is therefore denied.”
After denying probation, the court followed the sentencing recommendation of the probation department and imposed the aggravated term of three years in state prison. This timely appeal followed.
III.
It bears emphasizing that appellant is not challenging the selection of the aggravated term in imposing sentence. His only complaint is that the court erred in not considering his unmailed letter in deciding whether this case is an unusual one within the meaning of section 1203, subdivision (e)(4) justifying a grant of probation. He argues that the failure to consider the letter to be relevant ignored appellant’s right to have his “moral and ethical culpability for the crime” mitigated, and constituted both an abuse of discretion and a denial of his right to due process.
First, we disagree with appellant’s assumption that the trial court failed to consider the fact that appellant wrote an unmailed letter to the Clearlake Police Department in June 2006. In reviewing the sentencing transcript carefully it appears that the trial judge rejected only the content of the letter as being irrelevant, and not the fact of its authorship or the circumstances surrounding its non-delivery. In fact, the court noted at the inception of the hearing that it had considered the probation report and appellant’s sentencing brief, both of which referred to the letter explicitly. One cannot conclude otherwise simply from the court’s failure to mention the letter specifically when denying probation, as courts are not required to articulate on the record every consideration taken into account in making its sentencing choices. (Cal. Rules of Court, rule 4.409; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822.) Thus, we conclude that a fair reading of the record supports the conclusion that indeed appellant’s letter was considered by the trial judge, but that it simply was insufficient to make this an unusual case meriting probation.
Even if the trial court did not consider the letter in its determination to deny probation, we find no error, and certainly no reversible error. As appellant concedes, he was not entitled to a grant of probation in this case absent unusual circumstances indicating that the interests of justice would best be served by such a grant. (§ 1203, subd. (e)(4).) Section 1203, subdivision (e)(4) provides that “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [¶] (4) [a]ny person who has been previously convicted twice in this state of a felony. . . .”
In deciding whether a case presents an unusual one for purposes of section 1203, rule 4.413 of the California Rules of Court offers uniform criteria for courts to use in making this assessment. Under rule 4.413(c), unusual circumstances permitting probation include: The circumstance giving rise to the limitation on probation (here, two prior felony convictions) is “substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes . . . .”
Appellant’s argument in favor of probation was that he was busy and this rush of other business simply caused him to forget to follow through and mail his letter to the Clearlake police. Thus, he contends his was a simply “technical” violation of the law. But, forgetting to register still constitutes a “willful” violation. (People v. Barker (2004) 34 Cal.4th 345, 358 [“we conclude that countenancing excuses of the sort given by defendant that he just forgot about his registration obligation ‘would effectively “eviscerate” the statute’ just as surely as characterizing violation of the statute as an instantaneous offense would have eviscerated it. [Citation.]”].)
We fully understand that appellant is arguing, not that his conduct supported a defense to the charge, but that it mitigated his “moral and ethical” culpability. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1227.) But, one cannot read Barker and not be impressed by the high court’s disdain for a claim of forgetfulness as an excuse for violating a law with such important public safety implications. (People v. Barker, supra, 34 Cal.4th at pp. 357-358.)
“In Wright, we noted with approval an observation made by the district attorney in that case: ‘[S]ex offenders often have a transitory lifestyle or deliberately attempt to keep their movements secret. Requiring a prosecutor to prove when the person moved—information uniquely within that individual’s knowledge and control—would hinder or even foreclose many prosecutions under section 290(f).’ [Citation.] Predictably, were we to accept defendant’s position, every sex offender charged with failure to register would claim to have forgotten to do so. Defendant makes light of the burden this would entail for the prosecution, asserting the prosecution would be able to present circumstantial evidence of the improbability the offender forgot, such as failure to ‘respond to reminders.’ Proving a sex offender failed to update his or her registration within the grace period is straightforward enough, largely a matter of documentary evidence. On the other hand, whether an offender was reminded of the registration obligation and failed to respond to the reminders is information, like information as to when an offender moved, ‘uniquely within that individual’s knowledge and control’ [citation]. Identifying the sex offender’s associates, and then attempting to prove through their testimony that the offender had failed to respond to reminders, would be a burden of an altogether different character and incalculably greater magnitude than the prosecution has heretofore been required to shoulder. Imposing such burden, we believe, cannot have been the Legislature’s intent. ‘Impeding vigorous prosecution can only encourage scofflaws, resulting in further violations and compounding “the substantive evil [the Legislature] sought [through section 290] to prevent.” [Citation.]’ [Citation.]” (People v. Barker, supra, 34 Cal.4th at pp. 357-358.)
Wright v. Superior Court (1997) 15 Cal.4th 521.
In fact, the opinion in Barker cited at length from the majority decision of the intermediate appellate court, including its conclusion that “ ‘[w]hether the obligation has simply slipped the individual’s mind is essentially irrelevant, because he was at all times obliged not to let that happen.’ ” (People v. Barker, supra, 35 Cal.4th at p. 353, italics added.)
In sum, forgetting to register is neither exculpatory, nor mitigating, and indeed, is a common cause of violations of the sex offender registration law. In appellant’s case, his effort to write a letter some weeks after commencing his stay with Kristi notifying law enforcement of the address is of little or no mitigating value. Accordingly, the trial court was fully justified in refusing to grant probation despite the letter’s authorship. Furthermore, it was not error if indeed the trial court refused to consider it in denying probation. In any case, even if it were error not to consider it, any error was harmless beyond a reasonable doubt. There is no question that appellant’s was not an unusual case warranting a grant of probation. The fact that he forgot to follow through and notify police of Kristi’s alternative address is clearly not unusual, and appellant’s circumstances are not particularly sympathetic or morally blameless. We note, too, that he suffered a prior conviction for the same offense only several years earlier.
In this case, appellant had a 2001 prior conviction for failing to register, a disqualifying circumstance itself under California Rules of Court, rule 4.414(b).
IV.
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.