Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD220619, Albert T. Harutunian III, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Hassie Megrave guilty of failing to register as a sex offender within five working days of coming into San Diego (Pen. Code, § 290, subd. (b)) (count 1), and failing to register as a sex offender within five working days of his birthday (§ 290.012) (count 2). Megrave admitted two prior prison term allegations (§§ 667.5, subd. (b), 668). The trial court sentenced Megrave to an aggregate term of four years in prison.
All subsequent statutory references are to the Penal Code, unless otherwise specified.
The information and the jury verdicts for both counts 1 and 2 refer to section 290.018, subdivision (b), which specifies the penalty for failing to properly register as a sex offender. Throughout this opinion, we cite to the underlying statutory violations (§ 290, subd. (b) (count 1) and § 290.012 (count 2)) for ease of reference. All references to section 290, subdivision (b) and section 290.012 are to the version of the statutes that were in effect at the time of the charged offenses.
On appeal, Megrave claims that the trial court erred in 1) denying two pretrial Marsden motions; 2) precluding him from arguing to the jury that the prosecution was required to establish that he had been in San Diego for five consecutive days in order to prove the charged offenses; and 3) failing to discharge a juror who expressed concerns to the court about her ability to remain impartial. We affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
The People alleged that on or between September 20, 2008 and May 10, 2009, Megrave failed to register as a sex offender within five working days of coming into a city in which he resided (§ 290, subd. (b)) (count 1). In count 2, the People alleged that on or between October 28, 2008 and May 10, 2009, Megrave failed to register as a sex offender within five working days of his birthday (§ 290.012).
B. The prosecution's evidence
1. Megrave's prior registrations as a sex offender
San Diego Police detective James Ryan testified that Megrave was required to register as a sex offender. Megrave had completed approximately 21 registration forms from 1996 through 2006, and had signed numerous forms acknowledging that he was required to register a sex offender for the remainder of his life. Megrave last registered in 2006 in Sacramento, California.
2. Megrave's presence in San Diego
On September 15, 2008, Megrave appeared at an office of the Department of Motor Vehicles (DMV) in San Diego to apply for an identification card. On his application, Megrave listed October 22, 1957 as his date of birth, and an address on 17th Street in San Diego as his mailing address.
The 17th Street address that Megrave gave the officer is the address for the Neil Good Day Center, a location where transients can receive mail, take a shower, and wash clothing.
On October 23, 2008, at approximately 1:15 a.m., a San Diego Police officer contacted Megrave near 1600 K Street in San Diego. Megrave gave the officer his 17th Street address.
On November 3, 2008, Megrave went to an office of the DMV in San Diego to begin the process of registering a vehicle that he had purchased on October 7. On December 12, Megrave went to the same office to complete the registration process.
On November 18, 2008, and January 6, 2009, Megrave spoke before a meeting of the San Diego City Council.
On January 15, 2009, a San Diego Police officer stopped Megrave, who was driving a vehicle in the Mission Hills neighborhood of San Diego. The officer issued Megrave a citation for driving a vehicle without a valid driver's license.
On February 1, a San Diego Police officer interviewed Megrave in connection with an altercation at a fast food restaurant. Megrave gave the officer the 17th Street address.
On February 16, 2009, Megrave telephoned the San Diego Police Department to report a theft. Megrave told an officer that he lived in a motor home near the 1000 block of Sherman Street, and gave the 17th Street address as his mailing address.
On May 10, at approximately 12:30 a.m., a San Diego Police officer contacted Megrave, who was riding a bicycle without a headlight. While conducting a records check, the officer learned that Megrave was also known by another name, Louis King. After determining that Megrave was required to register as a sex offender and that he had not done so, the officer arrested Megrave.
C. The defense
Eddie Sanchez, a program supervisor for the Imperial County Department of Behavioral Health, testified that Megrave had visited the Behavioral Health Day Center in El Centro on May 7, 2009 and May 8, 2009. Sanchez also testified that Megrave had been to the Behavioral Health Day Center sometime in April 2009.
Geary McMurray, a criminal defense investigator, testified that he examined certain property that police confiscated from Megrave at the time of his arrest. McMurray stated that he found a Seattle Union Gospel Mission Men's Shelter Guest Card that had been issued on September 5, 2006. McMurray also found an itinerary for a bus trip departing from El Centro on May 8, 2009 at 10:05 p.m. and arriving in San Diego at 12:35 a.m. on May 9.
McMurray also stated that he had examined certain of Megrave's property that was stored in a storage facility. McMurray found a train ticket dated May 4 for travel from San Jose to Oakland, and another ticket, also dated May 4, for travel from Chico, to Stockton.
III.
DISCUSSION
A. The trial court did not abuse its discretion in denying Megrave's Marsden motions
Megrave claims that the trial court erred in denying two pretrial Marsden motions. We review the denial of a Marsden motion for an abuse of discretion. (People v. Taylor (2010) 48 Cal.4th 574, 599.)
1. Factual and procedural background
On May 13, 2008, the trial court arraigned Megrave and appointed a public defender to represent him. On May 28, the trial court held a preliminary hearing and bound Megrave over on count 1 (§ 290, subd. (b)) and count 2 (§ 290.012). Approximately two weeks later, Megrave filed a motion in which he requested to be allowed to represent himself. In this motion, Megrave stated that he had "begged [defense counsel] to get information prior to [his] preliminary hearing, " and stated that defense counsel had refused to do so. Megrave claimed that the information "would have made the preliminary hearing have a different result." Specifically, Megrave indicated that defense counsel had failed to obtain a document from Seattle, Washington pertaining to Megrave's duty to register, and information concerning the dismissal of charges against Megrave for failing to register as a sex offender stemming from a recent arrest in El Centro, California. On July 15, the trial court granted Megrave's request to represent himself.
The motion states, "Example a [sic] relieve of the Defendant[']s duty to register as a sex offender. From Seattle Washington, [a]nd an arrest on the exact same charge in El Centro, [California] less than... one month prior to this arrest, where the results were charges dropped, case dismissed."
On August 17, during a hearing at which the court was discussing the evidence to be presented at trial, Megrave stated that he had a document "that's from Seattle, Washington, that relieves me of my duty to register per [section] 290...." Megrave explained that the document was relevant because the People were required to establish that he knew that he was required to register as a sex offender as an element of the charged offenses. The court responded that the prosecutor had a document that Megrave had signed that stated, "'Yes, I understand that under [the] California statute, I do have to register." The prosecutor interjected that she had "over ten documents acknowledging that."
At the same hearing, Megrave stated that he would be calling a witness to establish that he was in El Centro on the days immediately preceding his arrest. Megrave also indicated that he would present evidence that he had been incarcerated in El Centro for various periods of time in April 2009. Megrave argued that the People would be unable to establish that he was in San Diego for "five days prior to [his] arrest." The court asked the prosecutor, "Do you have a particular five-day period in mind?" The prosecutor responded, "He doesn't have to be here five days prior to his arrest. It's just sometime during the time frame."
On August 20, Megrave filed a motion entitled, "Defense Motion[, ] Ineffective Assistance of Counsel[, ] Marsden Motion." In the motion, Megrave requested that the court reappoint counsel, and further requested that the court appoint someone other than Donald Cary, the public defender who represented Megrave from May 14 through July 15. Megrave claimed that Attorney Cary had "proven himself to be ineffective counsel." In support of this contention, Megrave asserted that prior to the preliminary hearing, he called Cary and asked him to get three documents that would aid in Megrave's defense: a document from Seattle, Washington entitled, "Sex Offenders Relieve of Duty to Register [sic];" evidence of his April 2009 arrest for failing to register as a sex offender, for which the charges were dismissed; and a log of the Behavioral Health Day Center in El Centro for the two days prior to his arrest in May 2009. Megrave claimed that Cary told Megrave that he would not obtain these documents. Megrave asserted that none of the documents had been available for use at the preliminary hearing, but that he had subsequently obtained all of the documents while he was representing himself. Megrave also complained that Cary had conceded at the preliminary hearing that Megrave could be bound over.
On August 25, the court held a hearing at which the court explained to Megrave that it could grant Megrave's motion to appoint counsel, but that the court did not control which public defender would be appointed to represent him. The court explained that if Attorney Cary were appointed, the court would hold a hearing on Megrave's request to appoint substitute counsel. Megrave indicated that he understood, and that he wished to have counsel appointed. The court granted Megrave's motion to withdraw his in propria persona status and to appoint counsel.
The following day, when Attorney Cary appeared in court to represent Megrave, the court immediately held a hearing on Megrave's motion to appoint substitute counsel. At the hearing, Megrave reiterated the complaints that he had raised in his written motion. Megrave explained that the document from the State of Washington was relevant to prove that he did not know that he was required to register in California. The court noted that the district attorney had several documents that demonstrated that Megrave knew that he was required to register in California. After further discussions between Megrave and the court concerning this issue, the court inquired about Megrave's request for a printout of the record of his arrest in El Centro. Megrave agreed with the court that he was arrested when police came to his motor home after Megrave had called a mental health hotline. Megrave explained that he had called the Behavioral Health Day Center in El Centro prior to his arrest, but that he did not think that employees of the center had called the police. Megrave explained that he was arrested in El Centro for failing to register as a sex offender, but that the charges were subsequently dropped. Megrave argued that evidence of his arrest and release was relevant to prove his lack of knowledge as to the registration requirements.
The court asked to hear from Attorney Cary with respect to Megrave's concerns. Cary stated that Megrave had made numerous telephone calls to him prior to the preliminary examination. Cary said, "I relayed to him that neither Washington State nor El Centro can tie San Diego's hands in terms of prosecuting him for failure to register." Cary stated that after the preliminary hearing, he received a document from the State of Washington that indicated that Megrave did not have to register as a sex offender in Washington. Cary added, "[B]ut the document also indicates that it has no bearing on what happens on California." After the court looked at the Washington document, Cary explained that the document did not in fact expressly state that it had no impact on California's registration requirements.
The court asked Cary what investigation, if any, he had performed with respect to the El Centro arrest. Cary stated that he had never been given an address for the Behavioral Center in El Centro, and that he had been unable to locate an address after having attempted to do so. Cary added, "But, in any event, I told him that the contact in El Centro again had no bearing on whether he had to register in San Diego or not."
The court asked Cary whether he had discussed a possible defense with Megrave. Cary responded that he was exploring whether Megrave's assertion that he had not resided in San Diego was a viable defense, notwithstanding the existence of considerable evidence to the contrary. Cary added that he was still planning to conduct additional investigation with respect to Megrave's residence during the relevant time period. The court also asked Cary about Megrave's complaint that Cary had essentially agreed to a bind over at the preliminary hearing. Cary responded that he had not agreed to a bind over. The court reviewed the preliminary hearing transcript and indicated that it was ready to rule.
The court stated that Megrave was asking the court to find that Cary's performance had been "constitutionally inadequate, " and that the court could not make such a finding. The court explained that it was not unusual for defense counsel not to present evidence at a preliminary hearing and that, based on the prosecution's evidence in the case, "anybody would have had to have expected a bindover."
With respect to the document from the State of Washington, the court stated, "[E]ven if you thought you didn't have to register... that was not a reasonable thought based on the number of times that you've been told that you had to register, it's not going to be a defense." The court stated, "[T]he California requirement is that you register if you essentially knew or should have known, one, that you had the obligation to register." With respect to the El Centro arrest, the court indicated that the arrest and subsequent dismissal of charges did not preclude authorities in San Diego from charging Megrave with failing to register. The court stated that it did not think that Cary had done anything "that I can remotely call incompetent, " and denied Megrave's motion.
Approximately one month later, on September 28, Megrave orally requested that the trial court appoint substitute counsel. The court held a second Marsden hearing. At that hearing, Megrave explained that he had filed a claim with the "County Claims and Investigation Division, " with respect to Attorney Cary, and argued that it would be a conflict for Cary to remain as Megrave's counsel. The court explained that Megrave could not create a conflict that would necessitate substitution of his counsel, and denied the motion. After the court denied the motion, Megrave requested that he be allowed to represent himself. The court granted Megrave's request, and Megrave represented himself throughout the remainder of the proceedings.
2. Governing law
In People v. Smith (2003) 30 Cal.4th 581, 604, the Supreme Court outlined the law that governs a defendant's request for substitute counsel pursuant to Marsden, supra, 2 Cal.3d 118 and its progeny:
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. [Citation.]"
3. Application
On appeal, Megrave contends that the transcripts of the Marsden hearings demonstrate that Attorney Cary provided ineffective assistance of counsel. While Cary's responses to the court's inquiry during the initial Marsden hearing raise some questions concerning whether Cary appreciated the potential relevance of the documents that Megrave had asked Cary to obtain, the record does not demonstrate that Attorney Cary provided Megrave with inadequate representation.
Megrave's initial Marsden motion was based primarily on Attorney Cary's failure to obtain certain documents prior to the preliminary examination. As the trial court suggested in denying Megrave's initial Marsden motion, defense counsel does not provide constitutionally inadequate representation by failing to conduct a complete investigation and assemble a full defense at this stage of the proceedings. (See Galindo v. Superior Court (2010) 50 Cal.4th 1, 8 [denial of discovery motion prior to preliminary hearing "would not prevent defense counsel from providing effective representation at the preliminary hearing, " in light of "low standard of proof governing preliminary hearings"].) Attorney Cary indicated that he had not completed his preparations for trial at the time of the Marsden hearing. We cannot conclude that Cary provided constitutionally inadequate representation in failing to acquire the documents that Megrave referenced in his Marsden motion, prior to the preliminary hearing. This is particularly true since introduction of the documents that Megrave mentioned clearly would not have altered the result of the preliminary hearing.
We reject Megrave's contention that he has demonstrated that Attorney Cary provided inadequate representation on the ground that the preliminary hearing transcript indicates that Cary "essentially agreed" to a bind over. At the preliminary hearing, Cary argued that there was "no proof that Mr. Megrave ever resided in San Diego, " which makes it clear that Cary did not stipulate to a bind over. Cary then stated, "Counts 1 and 2 seem to be repetitive. You can bind over on Count 1 or 2. In any event, they appear to repeat the same thing. And he should only have one count." While perhaps awkwardly phrased, when read in context, it is clear that Cary was arguing that counts 1 and 2 were duplicative, and that he was not stipulating that the court could bind Megrave over on one of the counts. We conclude that Cary's statement at the preliminary hearing does not provide a basis for concluding that he provided constitutionally inadequate representation.
In his reply brief, Megrave focuses considerable attention on Cary's failure to determine the address of the Behavioral Health Center in El Centro, in arguing that Cary provided ineffective assistance of counsel. Even assuming that Megrave were correct that the address was easily ascertainable on the Internet, the fact that Megrave had been at that address for two days prior to his arrest was not critical information to have at the preliminary hearing, since the People were not required to prove that Megrave had been in San Diego in the days immediately prior to his arrest.
Even assuming that Megrave is correct in asserting that Attorney Cary "failed to grasp [Megrave's] argument" that the document from the State of Washington and evidence of his arrest (and release) in El Centro were relevant to demonstrate Megrave's lack of knowledge as to his obligation to register in California, such a failure does not equate to constitutionally inadequate representation, nor does it demonstrate an irreconcilable conflict. In addition, the record does not foreclose the possibility that Cary had concluded that a defense based on Megrave's lack of knowledge as to California's registration requirements was not a viable defense strategy in light of evidence to the contrary that the prosecutor possessed. (People v. Dickey (2005) 35 Cal.4th 884, 922 ["We do not find Marsden error where complaints of counsel's inadequacy involve tactical disagreements"].)
The trial court was incorrect in stating that the People could prove that Megrave had committed the charged offenses by demonstrating that he "should have known" that he had an obligation to register. "[A] violation of section 290 requires actual knowledge of the duty to register." (People v. Garcia (2001) 25 Cal.4th 744, 752.)
Megrave also claims that the transcript of the second Marsden hearing demonstrates that there was an irreconcilable conflict between himself and counsel. The trial court did not abuse its discretion in concluding that Megrave created this conflict himself by filing a claim against Cary, and that he was therefore not entitled to new counsel on this basis. (People v. Barnett (1998) 17 Cal.4th 1044, 1110 ["the court could properly reject defendant's notice of intent to sue as a ploy to create a conflict of interest"].)
Accordingly, we conclude that the trial court did not abuse its discretion in denying Megrave's Marsden motions.
B. The trial court did not err in precluding Megrave from arguing to the jury that the prosecution was required to prove that he had been in San Diego for five consecutive days
Megrave claims that in order to find him guilty of the charged offenses (§ 290, subd. (b)) (count 1), (§ 290.012) (count 2), the prosecution was required to prove that he had been in San Diego for five consecutive days, and that the trial court erred in precluding him from presenting this argument to the jury. Megrave's claim raises a question of law as to the elements of the charged offenses, which we review de novo. (See e.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)
1. Factual and procedural background
During a conference outside the presence of the jury, the trial court precluded Megrave from arguing to the jury that the prosecution was required to prove that he had been in San Diego for five consecutive days in order to find him guilty of the charged offenses.
2. Governing law
At the time of the charged offenses, section 290, subdivision (b) provided in relevant part:
"(b) Every person described in subdivision (c) [specifying those offenders 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, ... within five working days of coming into, or changing his or her residence within, any city, ... and shall be required to register thereafter in accordance with the Act."
At the time of the charged offenses, section 290.012 provided in relevant part:
"(a) 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 subdivision (b) of Section 290."
In People v. Williams (2009) 171 Cal.App.4th 1667, 1671 (Williams), the court held that the prosecution need not prove that a defendant stayed at a particular residence for five consecutive days in order for the defendant to be found guilty of former section 290, subdivision (a)(1)(A). The Williams court reasoned:
Former section 290, subdivision (a)(1)(A) is identical in all material respects with section 290, subdivision (b).
"The purpose of the section 290 registration requirement is to assure that convicted sex offenders are readily available for police surveillance. The triggering of a sex offender's five-day notice period is a question for the jury. That question is not dependent upon whether the offender stayed at a residence five or more consecutive days. The duty to register arises when the sex offender enters a jurisdiction and ends when he or she leaves the jurisdiction. (People v. Poslof (2005) 126 Cal.App.4th 92, 103 [(Poslof)]; People v. Davis (2002) 102 Cal.App.4th 377, 382 [(Davis)])." (Williams, supra, 171 Cal.App.4th at p. 1672.)
In Poslof, the defendant claimed that he was not required to register in a jurisdiction in which he maintained a second home because he had not resided there for more than five consecutive days. (Poslof, supra, 126 Cal.App.4th at p. 101.) The Court of Appeal held that the trial court did not err in refusing the defendant's request that the court instruct the jury that the prosecution was required to demonstrate that he had resided in a jurisdiction for five or more consecutive working days in order to prove that he had violated former section 290, subdivision (a)(1)(A). The Poslof court reasoned in part:
As in Williams, the text of former section 290, subdivision (a)(1)(A) at issue in Poslof is identical in all material respects with section 290, subdivision (b).
"We conclude the trial court appropriately rejected defendant's proposed special instruction. Former section 290 does not state that registration was not required unless an individual has stayed at a location for at least five consecutive working days. Section 290, subdivision (a)(1)(A), only states that a sex offender is required to register 'within five working days of coming into, or changing his or her residence or location.[']...
"There is no language in section 290 that states or implies that a sex offender need not register if he stays at a second or additional location for less than five consecutive days. The reference in the statute to 'five working days' pertains to the time in which a sex offender must notify law enforcement of his location upon entering or leaving a jurisdiction or establishing a second or additional location. Here, the five-day notice period was triggered upon defendant establishing an additional location or residence. When the five-day notice period was triggered in defendant's case is a question of fact for the jury, which is not dependent upon whether he stayed at the residence five or more consecutive days." (Poslof, supra, 126 Cal.App.4th at pp. 101-102.)
3. Application
For the reasons stated in Poslof and Williams, we conclude that the People were not required to prove that Megrave had been in San Diego for five consecutive days in order to find him guilty of section 290, subdivision (b). Neither section 290, subdivision (b) nor section 290.012 contains language that requires the People to prove that Megrave had been in San Diego for five consecutive days.
Megrave fails to persuade us that we should follow Davis, supra, 102 Cal.App.4th 377, or People v. North (2005) 112 Cal.App.4th 621 to reach a contrary conclusion. In Davis, the court considered whether a separate offense was committed under former section 290, subdivision (a)(1)(A) each time the defendant entered the same jurisdiction and failed to register within five days. The Davis court concluded, "Given the purpose of section 290, to allow local law enforcement agencies to keep known sex offenders under surveillance, the duty to register arises when the sex offender enters a jurisdiction and ends when he leaves the jurisdiction." (Davis, supra, at p. 382.) In his reply brief, Megrave notes that the Davis court provided the following hypothetical examples concerning when a defendant's duty to register would begin and end:
"The following examples illustrate when a sex offender's registration duties begin and end. A sex offender who enters the City of Los Angeles in January and remains there for five consecutive working days must register with the LAPD no later than the fifth consecutive working day. If the offender drives to the City of Riverside in February, stays overnight, and returns to Los Angeles the following day he is still under his original duty to register in Los Angeles; no duty arose to register in Riverside. If, however, the sex offender drives to Riverside and remains there for five consecutive working days, he is under a duty to register with the Riverside police department no later than the fifth consecutive working day. His duty to register in Los Angeles also ends on that day because the LAPD no longer has an interest in surveilling a sex offender residing outside its jurisdiction. Should the offender move back to Los Angeles, a new registration duty arises because the LAPD would once again have an interest in keeping him under surveillance." (Id. at pp. 382-383, fn. omitted, italics added.)
The defendant in Poslof also relied on this language from Davis in arguing that the prosecution was required to prove that he had resided in a jurisdiction for five or more consecutive working days. The Poslof court rejected the argument, reasoning, "Davis is not persuasive authority for the proposition that there is no duty to register a sex offender's additional residence under section 290 until the defendant has stayed at the residence at least five consecutive working days. Nothing in the language of section 290 compels such a conclusion." (Poslof, supra, 126 Cal.App.4th at p. 103.) We agree with the Poslof court, and disagree with the Davis court's suggestion that the five-day period specified in section 290, subdivision (b) and section 290.012 should be interpreted to establish when the obligation to register arises. Instead, the five-day period specified in section 290, subdivision (b) and section 290.012 establishes when the obligation to register must be completed. Thus, we decline to follow the Davis court's suggestion that the duty to register arises only when an individual remains in a jurisdiction for five or more consecutive working days.
In North, supra, 112 Cal.App.4th 621, the court was interpreting a different aspect of former section 290, subdivision (a)(1)(A) than is at issue in this case, namely, the meaning of the term "located" as used in the statute quoted below:
"Every person described in paragraph (2) [i.e., those required to register], for the rest of his or her life while residing in, or, if he or she has no residence, while located within California... shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located... within five working days of coming into, or changing his or her residence or location within, any city... in which he or she temporarily resides, or, if he or she has no residence, is located." (North, supra, at p. 629, emphasis altered.)
Rejecting a defendant's challenge that the meaning of the term "located" in former section 290, subdivision (a)(1)(A) was unconstitutionally vague, the North court concluded that "an offender is 'located' in a jurisdiction for purposes of registration when he is present in the jurisdiction on five consecutive working days." (North, supra, 112 Cal.App.4th at pp. 634-635.) Megrave quotes this language from North in support of his contention that the People were required to prove that he had been in San Diego for five consecutive days in order to find him guilty of the charged offenses. We are not persuaded. Most fundamentally, the North court was interpreting language—the meaning of the term "located" in former section 290, subdivision (a)(1)(A)—that is not at issue in this case. Further, the vagueness concerns that animated the North court's interpretation of that term have been addressed by the enactment of section 290.011, which specifies the manner by which transients are required to register.
Megrave does not raise any argument in his opening brief as to the potential applicability of section 290.011 to this case. In his reply brief, Megrave notes that section 290.011 specifies how a transient is to register if he is " 'not physically present in any one jurisdiction for five consecutive working days.' " Megrave contends that this supports his contention that "in most circumstances, the duty to register arises where someone is 'physically present in any one jurisdiction for five consecutive working days.' "
We conclude that the People were not required to establish that Megrave had been in San Diego for five consecutive days in order to prove the charged offenses. Accordingly, we conclude that the trial court did not err in precluding Megrave from presenting this argument to the jury.
C. The trial court did not abuse its discretion in failing to discharge a juror who expressed concerns to the court about her ability to remain impartial
Megrave claims that the trial court erred in failing to discharge a juror who expressed concerns to the court about her ability to remain impartial. " 'The decision whether... to retain or discharge a juror rests within the sound discretion of the trial court.' [Citations.]" (People v. Cowan (2010) 50 Cal.4th 401, 506.) We review the trial court's decision for an abuse of discretion. (People v. Lynch (2010) 50 Cal.4th 693.)
1. Factual and procedural background
During the trial, outside the presence of the jury, the court summoned Juror No. 7 to the courtroom to discuss a note that Juror No. 7 had submitted to the court indicating that she was concerned about the fact that Megrave's arrest occurred less than 300 feet from her home. When Juror No. 7 entered the courtroom, the court inquired as to her apprehension. Juror No. 7 explained that she was concerned that the arrest had taken place near her residence, because the court had instructed the jury "not to go the area where something happened and try to reenact." Juror No. 7 explained that she had to pass near the area of Megrave's arrest frequently. Juror No. 7 also stated that she had a second concern, which she described in the following manner:
The actual note is not in the record.
"And then also, I start feeling—it triggers these thoughts. And it's nothing against the defendant, but the actual system of registration, that there are transients, registered sex offenders that can actually get to the corner and not be kept after. He said there was [sic] 300 in the City. And perhaps there are more that are actually not located. So those kind[s] of things are going on in my mind when I'm driving back and forth. And I have a 15 year old that wants to take the bus."
The court responded by explaining that the location of the arrest was not an issue in the case, and that Juror No. 7 was free to go to the area. With respect to Juror No. 7's second concern, the court explained that the sex registration requirements did not preclude registrants from traveling freely. The court also stated, "But I need to [know] whether there's something about, you know, hearing that there was an arrest that occurred near... your residence in this case, that would interfere with your being fair in deciding whether there was a registration requirement and whether it was complied with in this case." Juror No. 7 responded, "I do feel uncomfortable, and I [sic] with whether I can be fair knowing all the information."
The court responded that were many instances in which a juror might feel uncomfortable, "[b]ut that doesn't speak to the issue of whether the parties are going to get a fair decision from a juror." The court stated that it was unsure as to why the location of Megrave's arrest would affect Juror No. 7's ability to be fair in the case. Juror No. 7 responded:
"Well, because I'm having to go through the intersection, and it just makes me keep thinking about the case. And I'm not supposed to be doing that. I thought your instructions were to stay away from any area relating to the case."
The court repeated its assurances that the location of the arrest was not an important issue in the case. After further discussions between the court and Juror No. 7 concerning how her passing near the location of the area of Megrave's arrest reminded her of the case, Juror No. 7 stated:
"I think what I'm thinking is not what the defendant did or did not do. What triggers my thoughts about the case is actually the law itself and how it protects society and how that actually is related to my neighborhood."
After the court briefly interjected, Juror No. 7 continued, "And so I question the system."
The court responded that there was nothing improper with a juror thinking about "how well or poorly the system works, " so "long as [the juror is] not letting that control making a decision in the case." The court provided an example of how a juror in a driving under the influence case might believe that the legal blood alcohol limit should be lowered. The court explained that, notwithstanding such thoughts, the juror could serve in the hypothetical case properly by applying the law as written. The court continued, "So you are allowed to think about issues as they may affect your view of the future or about societal issues, as long as it's not going to cause you to change your decision in this case based on some factors that are extraneous to the evidence. Does that make sense?"
Juror No. 7 responded, "Yes." The court asked the juror, "Do you feel that you can continue as a juror in being fair to both sides?" Juror No. 7 responded in the affirmative. Juror 7 then stated, "I just felt I needed to let you know that I live in close proximity." The court stated, "Okay. I appreciate that." Juror No. 7 responded, "And I had these feelings and I was told not to be in the area." The court again thanked Juror No. 7 for bringing the issue to the court's attention, told the juror that she should have no concern about the location of her residence, and requested that she wait outside the courtroom until the trial began again. Immediately thereafter, the court dismissed the parties and called a recess.
2. Governing law
Section 1089 provides in relevant part:
"If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
In People v. Lynch, supra, 50 Cal.4th at page 744, the Supreme Court outlined the law that governs a trial court's decision whether to discharge a juror pursuant to section 1089:
" 'Section 1089 authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is 'found to be unable to perform his or her duty." [Citation.] 'A juror's inability to perform " 'must appear in the record as a "demonstrable reality." ' " [Citations, fn. omitted.]"
3. Application
As the description of the lengthy colloquy above demonstrates, the trial court carefully considered Juror No. 7's ability to remain impartial in this case. Juror No. 7's comments reflect that her primary concerns were whether it was appropriate for her to be passing by the location of Megrave's arrest, and the efficacy of sex offender registration laws. After the court discussed both issues at length with Juror No. 7, she reaffirmed her ability to remain impartial. Further, while Juror No. 7's initial expressions of apprehension as to whether could remain impartial certainly warranted further inquiry, the trial court conducted such inquiry. Based on Juror No. 7's responses, the court could have reasonably determined that she could remain fair to both sides.
We reject Megrave's contention that People v. Taylor (1961) 189 Cal.App.2d 490, 495 (Taylor), demonstrates that the trial court abused its discretion in this case. In Taylor, the court described the facts concerning the discharged juror as follows:
"After the jury was selected and sworn, and two alternate jurors were selected and sworn, a juror, a Mr. Robinson, told the court that because he had worked with the appellant's father off and on for 12 years and also because the appellant's sister lived next door to him it would be very difficult for him to give a just verdict for either side. Robinson requested a discharge which the court granted, and an alternate juror replaced him on the jury." (Taylor, supra, at p. 494.)
In rejecting the defendant's contention that his prosecution was barred on double jeopardy grounds, the Taylor court stated:
"There is no merit in appellant's contention that he was placed in double jeopardy. Under [section 1089] a juror may be substituted without jeopardy attaching if good cause for dismissal of the juror exists. [Citation.] What constitutes good cause rests largely in the discretion of the trial court. Where a juror states his doubt as to his ability to perform his duty justly good cause exists. [Citation.]" (Taylor, supra, 189 Cal.App.2d at pp. 494-495.)
Unlike in Taylor, Juror No. 7 never requested that she be discharged. On the contrary, Juror No. 7 reaffirmed her ability to remain impartial. We reject Megrave's suggestion that Taylor mandates that a trial court discharge a juror whenever a juror expresses any doubt as to the juror's ability to remain impartial. As the Taylor court recognized, the determination of good cause rests in the sound discretion of the trial court (Taylor, supra, 189 Cal.App.2d at p. 495), and will depend on the facts and circumstances of the case. In this case, for the reasons stated above, the trial court reasonably concluded that Juror No. 7 could still "perform his or her duty, " as a juror. (People v. Lynch, supra, 50 Cal.4th 744.)
We also reject Megrave's contention that Juror No. 7's comments "clearly implied that her impartiality was compromised by her thoughts about the law's inability to keep sex offenders away from her neighborhood...." Even assuming that one could interpret Juror No. 7's comments as reflecting her belief that existing laws concerning sex offenders were not sufficiently stringent, "[d]isagreement with the current state of the law is not disqualifying by itself." (People v. Stewart (2004) 33 Cal.4th 425, 449.)
Finally, we reject as pure speculation Megrave's contention that Juror No. 7's "emotional reaction to appellant being a sex offender in her neighborhood was likely to have prevented her from participating in the deliberation process as an unbiased juror." Accordingly, we conclude that the trial court did not abuse its discretion in failing to discharge Juror No. 7.
In light of our rejection of Megrave's claim on the merits, we need not address the People's contention that Megrave forfeited his claim by failing to request that the trial court dismiss Juror No. 7.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P.J., McDONALD, J.
We are not persuaded. To begin with, "[a]n appellant... forfeits an issue by failing to raise it in his or her opening brief." (Doe v. California Dept. of Justice (2009)173 Cal.App.4th 1095, 1115.) Further, section 290.011 specifies the manner by which a transient is to register if he or she is "not physically present in any one jurisdiction for five consecutive working days...." Thus, section 290.011 makes it clear that remaining in a jurisdiction for five consecutive working days is not a prerequisite to transient registration.