Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Before Vartabedian, Acting P.J., Gomes, J. and Kane, J.
APPEAL from a judgment of the Superior Court of Kings County Ct. No. 07CM3694, Thomas DeSantos, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
INTRODUCTION
Appellant Paul Thomas Perkins was convicted of violating Penal Code section 288, subdivision (a) in 1985. The conviction required mandatory sex offender registration under section 290. Appellant was informed of his duty to register and to notify law enforcement authorities of any change of residence. After appellant was released from prison for the 1985 conviction, he registered with the Kings County Sheriff’s Office. In 1992, appellant moved to the State of Missouri without notifying the authorities of his change of address.
All statutory references are to the Penal Code unless otherwise noted.
In January of 2008, an information charged appellant in count 1 with failure to do an annual update of his sex offender registration and in count 2 with failure to notify the last registering agency within five working days of moving from the last registered address. It was also alleged that he had suffered a prior strike conviction under section 288, subdivision (a). On January 31, 2008, appellant pled nolo contendere to count 2 and admitted the prior conviction. Count 1 was dismissed in the interest of justice. He was sentenced to 16 months in state prison, which was doubled pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), for a total of 32 months in state prison. Appellant filed a timely notice of appeal and thereafter an amended request for certificate of probable cause was granted.
Appellant contends that (1) his conviction for failure to notify the authorities of his move out of state cannot stand because the registration statute in effect in 1991 was ambiguous (relying on People v. Franklin (1999) 20 Cal.4th 249 (Franklin)) and (2) the abstract of judgment erroneously lists the date of conviction as January 31, 2007, when the correct date was January 31, 2008. We affirm the conviction but agree that the abstract of judgment should be corrected to reflect the date of conviction as January 31, 2008.
DISCUSSION
Section 290 is the statute that delineates certain duties of registration imposed on sex offenders. It has been described as a comprehensive statutory scheme “‘to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’ [Citations.]” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527-528.) Ensuring offenders are readily available for police surveillance depends on timely change of address notification. (Ibid.)
In 1992, when appellant moved to Missouri without notifying authorities of his new address, section 290, subdivision (f) provided in relevant part:
“If any person required to register pursuant to this section changes his or her residence address, the person shall inform, in writing within 10 days, the law enforcement agency or agencies with whom he or she last registered of the new address.…” (Italics added.)
Section 290, subdivision (a) listed those convicted of violating section 288 among the class of persons required to register. Hence, appellant was required to inform law enforcement of any change in his residence address.
In 1995, subdivision (f) of section 290 was amended by adding the words “who is” after the word “person,” so that the first sentence then read:
“If any person who is required to register pursuant to this section changes his or her residence address .…”
More significantly, section 290, subdivision (a)(1) was also amended in 1995 to provide in relevant part:
“Every person described in paragraph (2), for the rest of his or her life while residing in California, shall be required to register .…” (Italics added.)
Thus, under the 1995 version of the statute, one convicted of violating section 288 was required to inform law enforcement of a change of address “while residing in California.” This language of the statute did not exist in 1992, when defendant moved to Missouri.
In 1998, section 290, subdivision (f)(1) was further amended. The amendment required change of address notification when a registrant “changes his … residence address or location, whether within the jurisdiction in which he … is currently registered or to a new jurisdiction inside or outside the state .…” (Italics added.) Thus, as a result of the 1998 amendment, a future registrant must give a change of address notification when leaving California. (Franklin, supra, 20 Cal.4th at p. 252.)
In Franklin, the defendant suffered 1985 convictions of child molestation and child sodomy. He first registered in 1989, but failed to register thereafter. In 1985, he and his wife moved to Texas without notifying any California law enforcement agency of his address change. He was arrested in Texas, returned to California and charged with two counts of child molestation, two violations of the sex offender registration law and various felony conviction enhancements and strikes. He was subsequently convicted of his failure to notify authorities of his move to Texas and the court found true both strike offenses. The California Supreme Court reversed the conviction, holding that the registration provision applicable to the defendant (the sex offender was required “for the rest of his … life while residing in California, … to register .…” under former § 290, subd. (a)(1)) was at least “ambiguous” regarding its application to persons such as the defendant who moved to another state. Arguably, when the defendant left for Texas, he was no longer “residing in California” and therefore was not obligated to register or notify the authorities. The court reasoned that both the defendant’s and the People’s interpretations of the statute were reasonable, but that any statutory ambiguities in the penal law should be construed in the defendant’s favor. (Franklin, supra, 20 Cal.4th at p. 255.)
Appellant herein argues that Franklin compels a similar result. It does not. In Franklin, the statute in effect at the time Franklin moved out of state provided that the duty to register and notify continued “while residing in California.” The court held that the words “while residing in California” could reasonably be interpreted to mean that one who changed his residence from California to another state was no longer “residing in California” and therefore had no duty under section 290 to report that change of address. The words “while residing in California” did not appear in the statute in 1992 when appellant moved to Missouri. There was no statutory ambiguity in 1992.
Appellant argues for the first time in his reply brief that he should receive the benefit of the ambiguity of the 1995 amendment as decided by Franklin, because, under Tapia v. Superior Court (1991) 53 Cal.3d 282, statutory changes that benefit defendants apply retrospectively. However, this proposition is limited to statutory changes that “clearly” benefit only defendants. (Id. at p. 300.) Franklin did not hold that the 1995 changes to section 290 were intended to benefit defendants; rather, it held that the new language was ambiguous as to what the Legislature intended and therefore the ambiguity had to be resolved in defendant’s favor. (Franklin, supra, 20 Cal.4th at p. 255.)
Appellant properly points out that the abstract of judgment incorrectly lists the date of conviction as January 31, 2007. The correct date was January 31, 2008. Respondent does not dispute this contention. The appellate court may correct a clerical error such as this by ordering the trial court to correct the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect the date of conviction as January 31, 2008.