Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. 5-060341-5 & 5-010327-5
Ruvolo, P. J.
Appellant pleaded no contest to a crime that required him to register as a sex offender, and was placed on probation. Appellant did not register, and never reported to his probation officer. In the present case, he was convicted by a jury of failing to register in the City of San Pablo, and was found by the court to have violated his probation. On this appeal, he argues that his conviction should be reversed because there is insufficient evidence that he resided in San Pablo long enough to require him to register there, and that the jury instructions were inadequate because they did not expressly state that the prosecution had to prove every element of his crime beyond a reasonable doubt. We reject these contentions, and affirm.
I. Facts and Procedural Background
On March 1, 2001, in Contra Costa County Superior Court case number 5-010327-5 (the 2001 case), appellant and a co defendant were charged with committing lewd acts and oral copulation with a minor under the age of 14 (Pen. Code, § 288, subds. (a), (c)(1)), and sodomy by force, and sodomy in concert by force (§ 286, subds. (c)(2), (d)). On April 15, 2002, in accordance with a plea agreement, appellant pleaded no contest to one count of committing a lewd act on a minor under the age of 14 (§ 288, subd. (a)).
All further statutory references are to the Penal Code unless otherwise noted.
As part of the documentation for the plea agreement, appellant initialed a form acknowledging that the conviction would subject him to registration requirements. The form was printed in English, and not in Spanish, but appellant was assisted by a Spanish-speaking interpreter whenever he appeared in court in the 2001 case.
On May 20, 2002, in accordance with the terms of the plea agreement in the 2001 case, the trial court sentenced appellant to six years in prison. Execution of the sentence was suspended, and appellant was placed on probation for five years. Among other conditions of probation, the trial court ordered appellant to report to his probation officer and to register as a sex offender under section 290.
The “Felony Order of Probation” form prepared in connection with appellant’s sentencing in the 2001 case (the Probation Order) indicated on the second page that appellant was to register as a sex offender. However, the front page of the Probation Order did not have a check mark in the box indicating that registration as a sex offender was one of the conditions of appellant’s probation.
On the Probation Order, an address in San Pablo (the San Pablo address) was filled in as appellant’s address, with a notation stating that it was the address of appellant’s brother-in-law. There is a space for appellant’s signature above the address on this form, but the copy in the court’s file does not bear appellant’s signature. Appellant’s signature does appear, however, on a California Department of Justice form entitled “Notice of Sex Offender Registration Requirement” (Form 290), prepared on the same date, which has the San Pablo address filled in as the “address where person notified expects to reside upon . . . release.” This portion of the Form 290 is normally completed by the person who is being ordered to register as a sex offender.
The Form 290 acknowledges that the person named on the form has been notified of his duty to register as a sex offender with the law enforcement agency having jurisdiction over the person’s residence within five working days of being released from incarceration. A copy of the Form 290 from the 2001 case was sent to the San Pablo Police Department.
The California Department of Justice computer system contains entries indicating that appellant was notified on May 20, 2002, of his obligation to register as a sex offender, and that the San Pablo police were notified that appellant intended to reside at the San Pablo address upon his release. Appellant did not register in San Pablo upon his release. Nor, according to the computer system, did he register anywhere in California, or re register within five days of his birthday, October 6, in 2002, 2003, or 2004.
The record indicates that due to an immigration hold, appellant was not actually released from custody until May 25, 2002. In the 2006 case, however, in order to simplify matters and avoid implications prejudicial to appellant, the jury was only given evidence that appellant was scheduled to be released on the day of sentencing, i.e., May 20, 2002. In any event, it was undisputed that appellant never reported to his probation officer after his release. On June 7, 2002, the trial court summarily revoked appellant’s probation in absentia, and issued a bench warrant for his arrest.
In April 2004, a San Pablo police officer learned from the Megan’s Law website that appellant was supposed to have registered as a sex offender in San Pablo, but had not done so. The San Pablo police had no evidence that appellant had ever contacted them after his release from custody in 2002. The officer investigated, and could not find any records indicating that appellant had died; was in custody; or had registered as a sex offender anywhere in California. The officer paid two visits to the San Pablo address sometime after May 2004, but no one was there. The receipt for a registered letter sent to appellant at the San Pablo address in May 2004 was returned signed by someone with the same first name as appellant’s brother-in-law.
The San Pablo police were unable to obtain any evidence that appellant had ever lived at the San Pablo address, or even that he had ever been in San Pablo. Appellant’s probation officer in the 2001 case had never visited the San Pablo address to check whether or not appellant was actually living there. On January 26, 2005, the San Pablo police made an entry in the California Department of Justice computer system indicating that they had not been able to determine appellant’s whereabouts.
In November 2005, by means not reflected in our record, the Contra Costa County authorities located appellant in Tennessee. There was evidence that he had been in Tennessee at least as of April 2004. The parties stipulated that appellant was transported from Tennessee back to California on November 22, 2005.
On December 12, 2005, a supplemental probation revocation petition was prepared in the 2001 case. It alleged that in addition to failing to report to his probation officer, appellant had also “failed to register [as a sex offender] since he was placed on probation,” without specifying San Pablo as the location in which appellant should have registered. The supplemental petition was filed on November 14, 2006.
On March 22, 2006, an information was filed against appellant in a new criminal case, Contra Costa County Superior Court case number 5-060341-5 (the 2006 case). In the 2006 case, appellant was charged with failing to register as a sex offender in the City of San Pablo. (Former § 290, subd. (a)(1)(A).)
All references to former section 290 are to the version in effect in 2002, which is the version under which appellant was charged. Former section 290 was amended effective March 28, 2002, but the amendments have no bearing on the issues in this case. (Stats. 2002, ch. 17, § 1.) Appellant was also charged in the 2006 case with failing to notify law enforcement in writing of an address change. (Former § 290, subd. (f)(1).) However, the trial court later granted his motion for acquittal on this charge.
The original and supplemental probation revocation petitions in the 2001 case (the probation violation charges) and the charges in the 2006 case (the failure to register charge) were tried simultaneously, with the trial judge deciding the probation violation charges, and a jury acting as the trier of fact on the failure to register charge. In the 2006 case, the parties stipulated that appellant had been convicted of a felony sex offense that subjected him to the registration obligations of former section 290. Redacted versions of the documentation and reporter’s transcript relating to appellant’s no contest plea in the 2001 case were introduced into evidence at appellant’s jury trial in the 2006 case.
The prosecution offered no evidence of the probation violation other than the evidence introduced in the 2006 case. The defense also did not offer any additional evidence other than letters from appellant’s pastor, employer, and wife, as well as a case manager for a social services agency in Tennessee, supporting his argument that the judge should exercise his discretion not to find a violation.
The jury found appellant guilty of the failure to register charge, and the trial court sustained both of the probation violation charges. Appellant waived jury trial on the allegation in the 2006 case that he had a prior conviction, and it was found true by the court.
Sentencing occurred on December 19, 2006. In the 2001 case, the trial court ordered the execution of appellant’s previously suspended six-year prison term in the 2001 case. As to the 2006 case, the judge granted appellant’s Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to strike his prior strike, and sentenced appellant to two years in prison, to be served concurrently with the sentence in the 2001 case. Appellant filed a timely notice of appeal applicable to both cases.
II. Discussion
A. Sufficiency of Evidence in 2006 Case
Appellant argues that his conviction in the 2006 case should be reversed because the record does not contain sufficient evidence that appellant was present in San Pablo for at least five days after his release from custody in 2002. In resolving this issue, our “task is to determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. [Citation.] The judgment must be supported by ‘substantial evidence,’ which has been defined as evidence that ‘reasonably inspires confidence and is of “solid value.” ’ [Citations.]” (People v. Morris (1988) 46 Cal.3d 1, 19, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6.) In making this assessment, we “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 decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; see also Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690.)
Under this standard of review, the evidence in this case is certainly sufficient to justify a reasonable jury in finding beyond a reasonable doubt that appellant designated the San Pablo address as his intended place of residence upon his release from custody, and that it was in fact his brother-in-law’s address. The precise question raised by the appeal, therefore, is whether these two facts, standing alone, are sufficient to support the finding that appellant in fact was located in San Pablo for at least five days at some point after his release.
In arguing to the contrary, appellant relies on People v. Balkin (2006) 145 Cal.App.4th 487 (Balkin). In that case, as here, the defendant did not register as a sex offender at any time after he became subject to the requirement that he do so. There was no evidence in the record regarding the location from which the defendant was released on parole. He was arrested in Los Angeles over a year later, and gave an address in that city as the location where he received mail. However, “there was no evidence to establish when [the] defendant secured that address or moved into the city or county—it could have been one day prior to his arrest or more than five days.” (Id. at pp. 492-493.) Thus, the court concluded that “[t]here was insufficient evidence that [the] defendant had been present within the City or County of Los Angeles for five working days prior to his arrest . . .,” and reversed the conviction. (Id. at p. 493.)
The present case is distinguishable in several respects. Appellant indicated that the San Pablo address was where he intended to reside, not just receive mail. In addition, that address was the home of a relative. Finally, the record reflected that appellant was released from custody in Contra Costa County, in which the City of San Pablo is located.
In Balkin, supra, 145 Cal.App.4th 487, the jury was asked to infer that a defendant entered a jurisdiction at least five working days prior to being arrested there, based on no evidence other than the defendant’s use of a mailing address in the jurisdiction and his presence there on the date of his arrest. In the present case, in contrast, the jury was asked to infer that a defendant who stated that he intended to reside at the home of a relative upon being released from custody, and who was released in the same county where the relative resided, actually stayed with the relative for at least five days. This is a far more plausible inference.
As our Supreme Court has stated in another context: “ ‘From the declared intent to do a particular thing an inference that the thing was done may fairly be drawn.’ [Citations.] Thus, [a] defendant’s ‘declarations of . . . intent are admissible . . . as evidence of the probable doing of the act . . . .’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 205-206.) An inference of this type was equally proper in the present case, and we find it sufficient to support the jury’s verdict.
In People v. Williams, supra, 16 Cal.4th at page 206, the court held that a statement by a criminal defendant indicating that he was going to have a witness shot was admissible as evidence that the defendant had authorized the shooting that actually occurred. (See also Evid. Code, § 1250, subd. (a)(2).)
B. Jury Instructions in 2006 Case
Appellant’s trial in the 2006 case took place after the adoption of the CALCRIM instructions by the California Judicial Council. The use of the CALCRIM instructions rather than the formerly prevalent CALJIC instructions is strongly encouraged. (Cal. Rules of Court, rule 2.1050(e); People v. Thomas (2007) 150 Cal.App.4th 461, 465.)
In accordance with that policy, the trial court in this case gave CALCRIM instructions, including CALCRIM No. 220 on reasonable doubt. The instruction included the following language: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.” The same instruction also stated that “Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Appellant now argues that CALCRIM No. 220 is inadequate, because it does not expressly inform the jury that the prosecution must prove every element of its case beyond a reasonable doubt. We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.) Review of the adequacy of instructions is based on whether the trial court “fully and fairly instructed on the applicable law. [Citation.]” (People v. Partlow (1978) 84 Cal.App.3d 540, 558.) “ ‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]’ ” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) “Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citations.]” (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
Construed in light of these principles, and in the context of the instructions as a whole, CALCRIM No. 220 adequately explains the applicable legal principles. The instruction explicitly informs the jurors that “whenever [the trial judge] tell[s] [them] the People must prove something, [this] mean[s] they must prove it beyond a reasonable doubt[,] unless [the judge] specifically tell[s] [them] otherwise.” (Italics added.) In this case, the trial judge went on to enumerate each of the elements of the charged crime, and stated that the People were obligated to prove each of those elements in order for the defendant to be found guilty. If we assume, as we must, that “the jurors [were] intelligent persons and capable of understanding and correlating all jury instructions . . . given,” (People v. Yoder, supra, 100 Cal.App.3d at p. 338, italics added), then we can only conclude that the instructions, taken as a whole, adequately informed the jury that the prosecution was required to prove each element of the charged crime beyond a reasonable doubt.
In support of appellant’s contention regarding the asserted inadequacy of CALCRIM No. 220, he cites several California appellate cases. None of them, however, addresses the specific issue appellant has raised in this case.
Respondent counters by arguing that CALCRIM No. 220 was “approved” in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154. That case also is not on point. The issue in People v. Hernández Ríos was whether certain language that appears in CALCRIM No. 220, but was not present in the equivalent CALJIC instruction, was properly included in the instruction. (The language in question directs the jury to “compare and consider all the evidence” in determining whether the prosecution has proved its case beyond a reasonable doubt.) The court in People v. Hernández Ríos neither considered nor decided whether CALCRIM No. 220 is constitutionally adequate despite its failure to state explicitly that every element of a crime must be proven beyond a reasonable doubt. We remind counsel for both parties that opinions are not, and should not be cited as, authority for propositions not addressed in the opinion. (Ferguson v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1624.)
Three of the cases cited by appellant—People v. Vann (1974) 12 Cal.3d 220; People v. Phillips (1997) 59 Cal.App.4th 952; and People v. Crawford (1997) 58 Cal.App.4th 815—reversed criminal convictions based on the trial court’s failure to instruct the jury at the conclusion of the trial regarding the presumption of innocence, and its omission from the post trial jury instructions of any instruction defining reasonable doubt. (Accord, People v. Flores (2007) 147 Cal.App.4th 199.) Neither of these defects is present in this case.
There is a disagreement among the cited authorities regarding whether the total failure to instruct on reasonable doubt and the presumption of innocence constitutes structural error, and thus requires reversal regardless of any harmless error analysis. (See People v. Flores, supra, 147 Cal.App.4th at pp. 203-211; compare id. at pp. 219-223 (conc. & dis. opn. of McDonald, J.).) We need not address this question, as it is not presented under the facts of this case.
Appellant also cites People v. Harris (1994) 9 Cal.4th 407, 438, for the proposition that jury instructions must specifically require that each element of the crime be proved beyond a reasonable doubt. The point page cited, however, references Justice Mosk’s separate opinion. (Id. at pp. 432, 438 (Mosk, J., conc. & dis.).) Moreover, the issue in People v. Harris was not whether the reasonable doubt instruction was adequate, but what standard of review applied in determining whether the trial court’s improper definition of the “immediate presence” element of the crime of robbery was reversible error. (See id. at pp. 411, 416-418.) Again, this issue has no bearing on the adequacy of CALCRIM No. 220.
Citations to opinions other than a majority opinion should always be identified as such. (Cal. Style Manual (4th ed. 2000) Case Authority, § 1:10, p. 13.)
In his reply brief, appellant cites People v. Cole (2004) 33 Cal.4th 1158, 1208 for the proposition that “[t]he prosecution has the burden of proving beyond a reasonable doubt each element of the charged offense,” and People v. Wilson (1967) 66 Cal.2d 749, 759 for the proposition that a trial court “must instruct [the jury] on the general principles of law relevant to the issues raised by the evidence. [Citations.]” We have no quarrel with either of these general statements of basic principle, but neither of these cases involved the precise question posed by this appeal.
Finally, appellant cites numerous out-of-state authorities indicating that numerous other jurisdictions use the “each element” or “every element” language in their jury instructions on reasonable doubt. While we do not doubt that the use of such language is appropriate (see People v. Cole, supra, 33 Cal.4th at p. 1208), appellant has not cited any California or United States Supreme Court authority holding that it is constitutionally required. The mere fact that this language is used in other jurisdictions is not sufficient to persuade us that the California Judicial Council erred in adopting instructions that do not expressly include it.
C. Disposition of Probation Violation Charges
Appellant argues that if his conviction is reversed, the case should be remanded for reconsideration of the sentence imposed for his probation violations. In light of our affirmance of his conviction, this argument is moot.
III. Disposition
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.