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People v. Mcdade

Court of Appeals of California, Sixth Appellate District.
Nov 21, 2003
H024806 (Cal. Ct. App. Nov. 21, 2003)

Opinion

H024806.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHARLES MCDADE, Defendant and Appellant.


Defendant Anthony Charles McDade was convicted at court trial of failing to inform law enforcement of his new address or location. (Pen. Code, § 290, subd. (g)(2).) He was sentenced to two years in state prison. On appeal he challenges the constitutionality of the statute and the sufficiency of the evidence.

FACTS

In 1994 defendant was placed on probation for a sexual battery (§ 243.4) and ordered to register as a sex offender pursuant to section 290. In 1995, defendant violated probation, was sentenced to two years in prison and in 1997, was found by the Department of Corrections to meet the criteria for treatment as a "mentally disordered offender." (§ 2962.) He was placed in Atascadero State Hospital. In 2000, his request for outpatient treatment was granted. On May 18, 2000, four days before his release, defendant signed the form that notified him of his responsibilities pursuant to the sex offender registration law. He was informed that "[u]pon changing my location or place of residence, . . . I must inform in writing within 5 working days the law enforcement agency with which I last registered and then re—register my new address or location in person." (Original bold lettering.)

On May 22, 2000, parole agent Mark Forristal drove defendant from the hospital to Forristals San Jose office, a three—hour drive. "The urgency was for me to get him to see a P.O.C. [Parole Outpatient Clinic] doctor at my office." Forristal also reviewed a sex offender registration notification form with defendant and then drove defendant to the Salvation Army at 405 North Fourth Street in San Jose. Defendant appeared "normal" to Forristal. Two days later, defendant registered the Salvation Army address with the San Jose Police Department (SJPD). The form told him that if he changed his residence, he was to notify the last agency he had registered with of the change. The form also told him that if he had no residence, he had to update his registration information at least once every 90 days.

On June 26, the Salvation Army concluded that defendant was no longer living at its facility and terminated his residence. On July 16, 2000, San Francisco Police Officer Stephanie Otaguro, on patrol in the Haight—Ashbury area, saw defendant standing at a bus stop with an open beer can. While in the process of writing him a citation, she learned that he had an outstanding felony warrant. She booked him on the bench warrant. During the 90 minutes the booking took, she did not notice anything unusual about defendants behavior. However, she had only been working in that area for three months and had no training in mental health. Otaguro listed "101 Hyde Street," the address for General Delivery, as defendants address. Otaguro routinely gives that address for transients and homeless persons she arrests.

On July 17 on his release from jail, defendant signed a sex registration notification form at the San Francisco Police Department (SFPD). That form notified him of his duties including that "[u]pon changing my location or place of residence, . . . I must inform in writing within 5 working days the law enforcement agency with which I last registered . . ." (Original bold lettering.)

On September 8, 2000, defendant was arrested in San Francisco on the Santa Clara County warrant and transferred to Santa Clara County. In October 2000, Dr. David Berke, a licensed psychologist for over 20 years, interviewed defendant. He was not being medicated. Dr. Berke found him "floridly psychotic," "out of his mind," and "there was no question that he was mentally ill." Defendant was "ranting and saying he was into his own universe." He also said that Hilary Clinton was going to post his bail, and that he failed to register by one day because he "was engaged to be married."

Dr. Berke diagnosed defendant as having a schizophrenic and/or delusional disorder. Dr. Berke relied on the jail psychiatrists belief that defendant had a fixed delusional system (i.e., delusions that persist and that do not come and go) for the past seven years. Dr. Berke believed that defendant was not malingering, and that his symptoms would have been obvious to anyone. Dr. Berke believed that when a person like defendant stopped taking his medications, his "floridly psychotic" symptoms would become noticeable over a "relatively short period of time," perhaps one to three weeks.

In October 2001, Dr. Berke conducted a second interview with defendant. Defendant was taking his medication. Nevertheless, although defendant had improved, he was "still delusional, still impaired." For example, defendant said he had been with Jesse Owens at the 1936 Olympics in Germany despite defendants not having been born until 1954. Defendant also said he started for the Golden State Warriors 1977 basketball team and that he had never been mentally ill.

Dr. Berke noted that defendant appeared to understand his questions and that he was able to conduct a superficial conversation without the other party realizing that he was delusional. Defendant could relate facts, but the facts given by defendant were unreliable. Dr. Berke believed that defendant was not malingering. He also stated that to the untrained eye, defendants symptoms of delusion would not be noticeable.

Defendant waived a jury and had a court trial on June 19, 2002. He did not testify. On June 26, 2002, the court found him guilty as stated above and found the prior prison allegation true. This appeal ensued.

ISSUES ON APPEAL

Defendant contends section 290, subdivision (f)(1) (hereafter section 290(f)(1)), is impermissibly vague, has conflicting requirements, and that the words "is located" and "location" give inadequate notice of "what sorts of places count as locations, what sorts of activities the person must conduct there, what portion of the day he must spend there, with what frequency or regularity he must return there, or with what degree of precision must the places be identified." He also asserts that the evidence was insufficient to support his conviction for failing to inform the SJPD of his change of address on August 9, 2000, because on that date the "last registering agency" was the SFPD. Finally, he claims there was insufficient evidence to support the conviction because he was homeless, had a severe mental illness, and on October 2000 the court—appointed psychologist found him to be "floridly psychotic."

VOID FOR VAGUENESS

Defendant claims "is located" and "location" as used in the various provisions of section 290 give inadequate notice of which places that count as locations "are residential sorts of locations—i.e., the closest thing to a home which a homeless person has—or other places which are not comparable to a residence. It provides no guidance as to whether transient hotels and homeless shelters are locations because they have roofs over them and mailing addresses, but railroad sidings and freeway bridges are not because they lack those residential characteristics." Section 290 is also vague because it does not inform either "offenders or police officers whether transient hotels, homeless shelters, and homeless encampment are locations because they have beds—or, at least, sleeping bags or blankets—and people sleep there, whereas bars, restaurants, [and] soup kitchens[] are not because people eat and drink there. It does not tell the person concerned whether a church basement is a location if a person sleeps there but not if he takes a meal or attends an AA meeting there." Furthermore, the statute does not specify how much time a registrant must spend at a location, what proportion of a day, and how regularly a registrant must visit a location to qualify it as a "location." Finally, the statute does not indicate how large an area a "location" is. For example, if a registrant gave his location as " `along the Caltrain track in Redwood City near milepost 21, and he were forced to move 100 yards down the track, closer to milepost 22, there would be uncertainty as to whether he was registered at his actual location."

"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well—recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 (Connally).) Connally held that the word "locality" was uncertain in an Oklahoma law that provided penalties for paying workers " `less than the current rate of per diem wages in the locality where the work is performed . . . . " (Id . at p. 388.) The court stated, "Who can say, with any degree of accuracy, what areas constitute the locality where a given piece of work is being done? Two men moving in any direction from the place of operations, would not be at all likely to agree upon the point where they had passed the boundary which separated the locality of that work from the next locality. . . . The result is that the application of the law depends not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition, or by the context or other legitimate aid to its construction, but upon the probably varying impressions of juries as to whether given areas are or are not to be included within particular localities. The constitutional guaranty of due process cannot be allowed to rest upon a support so equivocal." (Id. at pp. 394—395.)

Two important values are offended by vague laws. "First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Grayned v. City of Rockford (1972) 408 U.S. 104, 108—109, fns. omitted.)

In Chicago v. Morales (1999) 527 U.S. 41, the Supreme Court considered a city ordinance which required police officers to order persons whom they believed to be gang members and who were loitering with others " `to disperse and remove themselves from the area " (id. at p. 59) and made disobedience to such order a violation. The Court found the provision forbidding remaining " `in any one place with no apparent purpose " (id. at p. 61) to be vague because a person would have no way of knowing whether his or her purpose was "apparent" or not. This inadequate notice was compounded by the terms of the dispersal order. "It provides that the officer `shall order all such persons to disperse and remove themselves from the area. . . . This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of `neighborhood and `locality. . . . We remarked in Connally that `[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles. " (Id. at p. 59.)

In Californias gang registration statute, this court found the provision requiring disclosure of the "areas frequented" by the gang unconstitutionally vague. "The trial courts order fails to accord defendant due process in that `areas frequented has no fixed meaning such that defendant can know what information he is expected to disclose and it places excessive discretion in law enforcement for its interpretation. The dictionary definition of the verb form of `frequent is `to associate with, be in, or resort to often or habitually: visit often. [Citation.] Relying upon this definition, one cannot determine with any degree of confidence whether the registrant must list places where he or she may be found daily, weekly, or even a couple of times a month. Furthermore, it is not just the frequency with which the registrant may be found at a particular place that is uncertain; it is also the type of `area that must be listed that is unclear. Given this uncertainty, the registrant cannot know either whether failing to list a place he goes to with some regularity, or going to a place he has not listed, would constitute a violation of the statute and of his probation. That portion of the trial courts order requiring defendant to identify `areas frequented is impermissibly vague and must be stricken." (People v. Sanchez (2003) 105 Cal.App.4th 1240, 1244.)

Defendant was charged in the information and found guilty of "the crime of FAILING TO INFORM LAW ENFORCEMENT AGENCY OF NEW ADDRESSES OR LOCATIONS, WHERE REGISTRATION IS BASED ON A FELONY CONVICTION AND A JUVENILE ADJUDICATION, in violation of PENAL CODE SECTION 290[, subdivision] (g)(2), a Felony, . . ." (original capitalization) in that defendant changed his residence addresses and locations, and willfully failed to inform in writing within five working days, the SJPD, the law enforcement agency with which he last registered, of his new addresses and locations.

Defendant supplies us with the definitions of "locate" and "location" from the New Shorter Oxford English Dictionary (1993) volume 1, page 1614, and from the Merriam—Webster Collegiate Dictionary. "Locate" means to "[e]stablish oneself or itself in a place; take up residence or business in a place; settle." "Location" is "1. The action or process of locating something . . . 2. The fact or condition of occupying a particular place; local position, situation; opposition in a series. . . . 3. A site, a place; . . . b. A place of settlement or residence." The Merriam—Webster Collegiate Dictionary (10th ed. 1993) at page 684, defines "locate" as "to establish oneself or ones business: SETTLE." It defines "location" as "1a. a position or site occupied or available for occupancy or marked by some distinguishing feature: SITUATION . . . 2. the act or process of locating."

Defendant argues that these definitions "imply something more than merely `being in a place. Use of such terms as `establish, `settle, `residence, and `occupancy, imply a degree of permanence. But the terms are so `elastic (Connally, supra, 269 U.S. at p. 395) that they can be used to refer to any place where a person is found only briefly or at unpredictable intervals. For example, it makes sense to say `that place over there under the tree looks like a good "location" for our picnic, however transitory my intended occupation of that site may be. `Locate and `location can be used to refer to any place where any person is for any length of time." (Emphasis defendants.)

The recent case of People v. North (2003) 112 Cal.App.4th 621, agreed. The court stated that "the registration of every particular location at which an offender is regularly present is not feasible, and even in theory would lead to multiple and often meaningless registrations. A transient offender may occupy many locations on a more or less regular basis during the course of a day, week, or month. Section 290 provides no hint as to which locations the offender must provide to the police for purposes of facilitating surveillance. It would be impossible to provide them all, and a good faith effort to comply with the literal terms of the statute would clog the registration system. To choose certain locations would expose the offender to the risk of prosecution for omitting others. `It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. [Citations.] [¶] Furthermore, the breadth of the `location provisions of section 290 invites arbitrary determinations by the registering authorities, . . ." (Id . at pp. 633—634.)

The court held "that when the Legislature used `location to require registration or notification of particular places where an offender may regularly be found, it failed to provide enough specificity for either the offender or the authorities to understand what the statute demands. The provisions of section 290, subdivisions (a)(1)(A) and (f)(1) requiring reregistration and written notification upon a change of `location are void for vagueness, as is the subdivision (a)(1)(B) requirement that a transient offender specify all the places where he is regularly located within a jurisdiction. Also void is the provision of section 290, subdivision (a)(1)(D) requiring annual verification of a transient offenders `temporary location. " (People v. North , supra, 112 Cal.App.4th at p. 634.)

In the instant case, the prosecutor argued that defendant violated section 290(f)(1) in that defendant was a person required to register because of his previous conviction for violating section 288 and for a juvenile adjudication; that he was registered with the SJPD as residing at the Salvation Army Hospitality House; that he left the Hospitality House; and he failed to inform the SJPD in writing within five working days of his new address (he did not have one) or location. Since the section of the statute that defendant was convicted of was failing to inform the SJPD in writing that he had left San Joses jurisdiction, we do not see that the vagueness of the word "location" infected his conviction and decline to reverse the judgment.

SUFFICIENCY OF THE EVIDENCE

Next, defendant contends the evidence is undisputed that he did not inform the SJPD he was leaving San Jose, but under the plain language of the statute he was not required to do so because "on or about August 9, 2000," the last registering agency was the SFPD, with which he claims to have registered on July 17, 2000. Defendant adds, "[e]ven if the evidence showed [he] had violated section 290, subdivision (f)(1), by failing to notify the San Francisco County Police Department [sic] of his new address or location, [defendant] could not be convicted of that offense here. ` "It is fundamental that `[w]hen a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. " [(People v. Davis (2002) 102 Cal.App.4th 377, 385.)] [Defendant] was not charged with failing to notify the San Francisco Police Department of his new address or location nor can such an offense be construed as necessarily included in the charge of failing to notify the SJPD when he left San Jose."

In reviewing the sufficiency of the evidence, " `the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Substantial evidence in a criminal case is "evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)

Here, there is no evidence in the record that he registered in San Francisco. The form defendant signed in the presence of SFPD officer Allen was entitled "Notice of Sex Offender Registration Requirement—290 P.C. (This is not the Registration Form)." In addition, the assistant manager of the Department of Justices Sex Offender Tracking Program wrote that defendants last registration was in San Jose and was dated May 24, 2000. Thus, there was no San Francisco registration to make the SJPD the second—to—the—last registering agency. The SJPD remained the last registering agency, and, as we will discuss, defendant was informed of his duty to notify it of his departure. Since, as he concedes, he failed to do so, substantial evidence supports the conviction.

Defendant also claims there was insufficient evidence that he had actual notice of his duty to notify the SJPD of his change of location because he was given contradictory information regarding his duty to register. Defendant claims the forms provided by Forristal and the SJPD informed him that he had to inform the SJPD if he changed his residence, not his location. The Notice of Registration Requirement form he signed in front of Forristal stated, "I have been notified of my duty to register as a convicted sex offender pursuant to Section 290 of the California Penal Code. I understand that: [¶] . . . [¶] I must upon changing my residence, inform . . . the law enforcement agency with which I last registered." (Italics added.) That document was outdated and did not contain the word "location." Two days later, defendant signed the "Registration Change of Address/Annual Update" form at the SJPD. That form also stated, "When changing my residence address, . . . I must inform the registering agency with which I last registered of the new address." (Italics added.) The SJPD form also did not contain the word "location," although it did advise of the procedure for a situation in which a registrant had no residence address. In that case, the registrant would have 90 days to provide updated information. Defendant claims this document told defendant that if on June 27, 2000, the day after he was terminated from the Salvation Army residence, he was homeless in San Jose, he would have until September 27, 2000, to re—register with the SJPD, a date past August 9, 2000, the date alleged in the information. When the SFPD had him sign the notification of duty to register form, he was instructed that "[u]pon changing my location or place of residence, . . . I must inform in writing within 5 working days the law enforcement agency with which I last registered . . . ." (Original bold lettering, italics added.) Thus, defendant claims he was given conflicting information. Forristal and the SJPD said he had to inform the last registering agency if he changed his residence, while the SFPD form said he had to notify the last registering agency if he changed not only his residence but also his location. Thus, he argues, the conflict, caused by law enforcement, should not be the basis for an inference that he had actual knowledge of the duty to inform the SJPD of a change in location, and then to further infer that his failure to notify the SJPD was willful.

In order to prove a violation of section 290, there must be evidence that the defendant had "actual knowledge" of his duty to register. (People v. Garcia (2001) 25 Cal.4th 744, 752.)

Here, there was sufficient evidence to prove that defendant was notified of his "continuing duty to give required notification of any change of address [citation][.] [A]ccordingly, violation of that duty is a continuing offense. A defendant does not commit the crime only at the particular moment the obligation arises, but every day it remains unsatisfied." (Wright v. Superior Court (1997) 15 Cal.4th 521, 528.)

On May 18, 2000, defendant signed a sex offender notification form while at Atascadero State Hospital. The form stated, "[u]pon changing my location or place of residence, either in the present agencys jurisdiction, or anywhere inside or outside of the state, I must inform in writing within 5 working days the law enforcement agency with which I last registered and then re—register my new address or location in person." (Original bold lettering, italics added.) Although four days later, defendant signed a notification form for Forristal and two days after that a SJPD registration form which did not inform him of the duty to inform of a change of location, on July 17 he signed a notification form for the SFPD which did correctly inform him of his duty to notify the last registering agency of a change of location.

There is no evidence in the record from which we may infer that defendant was confused by the different advisements or that he actually understood his duty was to advise of a new residence but that he need not advise of a change of location. The evidence in the record of defendants mental illness showed that he was "floridly psychotic" in October 2000 and in October 2001, but it does not establish that his mental faculties were impaired in May or July. There was evidence that in May, defendant was taking his medication and that Forristal found him "normal," and that in July Officer Otaguro found nothing about him unusual and she stated he was "very cooperative." Defendant was arrested on September 8 and transferred to San Jose, but there was no evidence of defendants state of mind then.

Consequently, we are satisfied that defendant had actual knowledge of his duty to advise of a change of address or location and that his failure to advise and re—register was willful.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Rushing, P.J., Elia, J. --------------- Notes: Further statutory references are to the Penal Code unless otherwise stated.


Summaries of

People v. Mcdade

Court of Appeals of California, Sixth Appellate District.
Nov 21, 2003
H024806 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Mcdade

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHARLES MCDADE, Defendant…

Court:Court of Appeals of California, Sixth Appellate District.

Date published: Nov 21, 2003

Citations

H024806 (Cal. Ct. App. Nov. 21, 2003)