Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF2304, M. Marc Kelly, Judge.
Mark S. Devore for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Vincent P. LaPietra, and Marissa Bejarano Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
This knot cannot be untangled. Michael Calvin Richardson was charged with violating probation by failing to register under Health and Safety Code section 11590. The evidence at his revocation hearing, however, showed that he didn’t violate section 11590, because he had stayed in the same city where he had registered, and section 11590 only requires a drug offender to register in the city where he or she lives. Rather, the evidence showed that Richardson had violated section 11594, which requires a drug offender to register after any change of address, including intra-city changes.
All undesignated statutory references in this opinion are to the Health and Safety Code.
In relevant part, section 11590 provides:
Which provides in relevant part:
The problem is, Richardson was never charged with violating section 11594. Nor was any amended petition ever filed. He was only charged with violating section 11590. The Attorney General argues we must construe statutes liberally, as indeed we must. Even so, we cannot find a case which by liberal interpretation allows one statute to morph into another.
The only other possible ground to uphold the decision was a finding that Richardson had associated with someone “disapproved of” by his probation officer -- he was seen snogging with another probationer in the parking lot of the probation office. But this ground fails because the condition that he “not associate with anyone disapproved of by your Probation Officer” has been expressly disapproved as too vague to enforce (see People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358), a point which the Attorney General concedes on appeal.
In short, we cannot write to affirm. We are forced to reverse.
I. BACKGROUND
As this is a procedural case, the relevant facts can be stated briefly in a few paragraphs. Michael Richardson was convicted in 2007 of sale and transportation of methamphetamine, and possession for sale and transportation of cocaine base. The trial court sentenced him to 13 years in state prison, but suspended the execution of the sentence, and placed him on probation with the requirement that, pursuant to section 11590, he register with the local police chief upon changing his address, and further to violate no laws. Then he was seen kissing another probationer in the parking lot of -- ironically enough -- the probation department, and the Orange County Probation Department filed a petition seeking revocation of Richardson’s probation.
It is of human interest only that Richardson was a professional football player in the 1980’s, who played cornerback for seven seasons, six seasons with the Chicago Bears, including their 1985 Super Bowl Championship, and spent one season with the San Francisco 49ers. His background explains why, as we are about to note, when the trial court put him on probation for two drug offenses, one of his supporters was Mike Ditka.
The petition alleged that Richardson had violated probation by knowingly associating with a narcotics user (the object of his parking lot affections), and violating the law by failing to register pursuant to section 11590.
With respect to the failure to register, the petition alleged: “On June 16, 2008, the probationer was directed to re-register as a drug offender with his new address. He was previously residing at 880 South Yorba Street and changed his residence to 591 South Prospect in the city of Orange. On August 6, 2008, a meeting was conducted between probationer’s counselor, Susie Schultz, the probationer and the undersigned at Cornerstone. The probationer was again directed to register pursuant to Health and Safety Code Section 11590. On August 7, 2008, during a home contact the probationer was directed to register pursuant to Health and Safety Code Section 11590. On August 18, 2008, the probationer stated he failed to re-register as a drug offender.”
We should note now: Both addresses were in the same city.
At that hearing, Richardson’s probation officer, Julie Herrera, testified that she had specifically told Richardson to register pursuant to section 11590 at the location where he resided. She acknowledged that Richardson had registered a Yorba Street address with the City of Orange Police Department on June 3. She also said, however, that on three or four days later Richardson had called her and mentioned he was living at a residence on Prospect Street and Herrera advised him over the phone that he needed to “re-register again.”
At the conclusion of the hearing, the court found by a preponderance of the evidence that Richardson, “specifically violated the term of failure to completely register pursuant to 11590 of the Health and Safety Code.” Several times later in the month Herrera told Richardson to re-register.
But then the trial court added: Richardson had not followed through “with the additional requirement when he moved [of] providing the police with a different address.” And that comment was a reference to another statute, section 11594.
The court imposed the previously suspended 13-year state prison sentence.
II
There are only three possible grounds on which to uphold the sentence. None are satisfactory.
A
The first is Richardson’s -- the word that probably doesn’t quite do the relationship justice -- “association” with the lady in the parking lot, who was a known narcotics offender. We may dispense with this ground quickly: The Attorney General concedes that it is based on a condition of probation too vague to be enforced. To quote his brief: “Because the court’s order did not provide the probation department with any guidance as to whom it could prevent appellant from associating with and because it did not contain any knowledge requirement, appellant’s revocation may not be affirmed on the association allegation.”
B
Nor does the Attorney General attempt to argue that the revocation can be upheld based on section 11590 -- the statute which Richardson was charged with violating. As we have noted, section 11590 only requires registration in a new city, and Richardson didn’t move to a new city when he moved from Yorba Street to Prospect Street -- he merely changed addresses within a city.
C.
Which leaves us with the third ground, namely, trying to uphold the revocation based on the substantial evidence that Richardson hadn’t re-registered when he changed addresses within the City of Orange.
The problem here is elementary due process. In a word, no notice.
“In all criminal prosecutions, the accused shall... be informed of the nature and cause of the accusation.” (U.S. Const., 6th Amend.) And if a Constitution isn’t good enough, a statute says the same thing: Pursuant to Penal Code section 950, an accusatory pleading must contain “a statement of the public offense or offenses charged therein.”
Generally, the notice requirement “is satisfied when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial.” (People v. Stone (2009) 46 Cal.4th 131, 141, citing People v. Ramirez (2003) 109 Cal.App.4th 992, 999.)
On this point, the Attorney General argues that a conviction under section 11594 subsumes a charge under section 11590 .
We have already noted one difference in the two statutes: City versus change of address.
But there is another: The difference between formal registration and simply informing relevant authorities. While section 11590 mandates that a probationer “within 30 days of his or her coming into any city or county, or a city and county in which he or she resides or is temporarily domiciled for that length of time, register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area[, ]” section 11594 states anyone who must register under section 11590 and changes his residence address, must “inform, in writing within 10 days, the law enforcement agency with whom he last registered of his new address.” (Italics added.) The two statutes actually require different acts for compliance, but nowhere in the accusatory pleading does it state that Richardson violated section 11594.
Consider, in this regard, People v. Mosley (1988) 198 Cal.App.3d 1167 (Mosley). In Mosley, the court conducted a combined jury trial and probation violation hearing. Mosley’s probation was revoked because he consumed alcohol, although the petition alleged he violated probation by committing a rape. (Id. at pp. 1170-1172.) In fact, Mosley only became aware of the alcohol allegation during jury deliberation. (Id. at p. 1170-1171.) On appeal, Mosley argued he had not received sufficient notice of the probation violation. (People v. Mosley, supra, 198 Cal.App.3d at p. 1174.) Since Mosley was not offered additional time to answer the allegation and had no opportunity to cross-examine witnesses, “Mosley had no opportunity to prepare and defend against that allegation, ” and the appellate court reversed the finding. (Ibid.)
Try as we might, we fail to see how a charge of violating section 11590 puts you on notice of having violated section 11594. There is a difference between formal registration and merely informing someone you have moved.
The Attorney General argues section 11590 is triggered whenever a probationer registers with the city or county where he or she lives, ergo section 11594 automatically becomes applicable. Citing In re Luisa Z. (2000) 78 Cal.App.4th 978, the Attorney General asserts that the “registration requirement triggers associated statutory obligations, such as maintaining current registration.... ” (Id. at p. 983.) Further, says the Attorney General, the legislative purpose of the statute is “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.” Hence, the argument goes, the legislative purpose would mean little if a probationer was permitted to change addresses as often as he or she wanted after properly registering under section 11590. (People v. Kun (1987) 195 Cal.App.3d 370, 374.) We have no disagreement with these general propositions (though they do counterintuitively assume that probationers have a tendency to only move within cities), but find them inapplicable here. The problem remains: Richardson wasn’t charged with violating section 11594.
Finally, we need not address Richardson’s claim the court abused its sentencing discretion. Although courts have broad discretion to revoke probation, the probationer’s conduct or failure to act must be voluntary and willful. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910; see also People v. Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Galvan (2007) 155 Cal.App.4th 978, 982; People v. Delson (1984) 161 Cal.App.3d 56, 62; People v. Giminez (1975) 14 Cal.3d 68, 72.) As noted, there is no evidence Richardson acted voluntarily or willfully when he failed to comply with section 11594. After all, Richardson informed his probation officer of his new address: And who is more a “law enforcement agency” than a probation officer?
III
The judgment is reversed and the matter remanded to the trial court for reinstatement of Richardson’s probation.
WE CONCUR: MOORE, J., BEDSWORTH, J.
“(a) Except as provided in subdivisions (c) and (d), any person who is convicted in the State of California of any offense defined in [a slew of narcotics offenses]... shall within 30 days of his or her coming into any county or city, or city and county in which he or she resides or is temporarily domiciled for that length of time, register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area.... ” (Italics added.)“The registration required by Section 11590 shall consist of (a) a statement in writing signed by such person, giving such information as may be required by the Department of Justice, and (b) the fingerprints and photograph of such person. Within three days thereafter the registering law enforcement agency shall forward such statement, fingerprints and photograph to the Department of Justice.“If any person required to register hereunder changes his residence address he shall inform, in writing within 10 days, the law enforcement agency with whom he last registered of his new address. The law enforcement agency shall, within three days after receipt of such information, forward it to the Department of Justice. The Department of Justice shall forward appropriate registration data to the law enforcement agency having local jurisdiction of the new place of residence.” (Italics added.)