Opinion
F084421
06-14-2023
THE PEOPLE, Plaintiff and Respondent, v. WALTER SALLY III, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. CR-20-006984. Carrie M. Stephens, Judge.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, J.
INTRODUCTION
A jury convicted Walter Sally III (appellant) of failing to annually update his registration as a sex offender within five working days of his birthday (Pen. Code, § 290.012, subd. (a)). The trial court sentenced him to the middle term of two years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant raises claims of instructional error, erroneous exclusion of a defense witness, and prosecutorial misconduct. We conclude no error occurred, or that any presumed error was harmless.
Appellant also contends he is entitled to monetary credit against his restitution fine for excess days spent in custody pursuant to section 2900.5, subdivision (a). Respondent concedes, and we agree. We order the restitution fine stricken. We affirm.
BACKGROUND
In May 2008, appellant was convicted of a felony offense requiring that he register for life as a sex offender pursuant to section 290.
A section 290 registrant must "register annually, within five working days of his or her birthday." (§ 290.012, subd. (a).) Appellant's date of birth is June 6, 1957. Thus, he is required to register every year within five working days of June 6.
On January 16, 2020, appellant appeared at the Stanislaus County Sheriff's Office to register. He met with Ezabel Sequeira, a community service officer who was working as the section "290 registrar." She handed appellant an "8102" Department of Justice registration form. The form is titled "SEX OFFENDER REGISTRATION," "CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE." Sequeira testified the form is used for annual registration, as well as for transient registration, which must occur every 30 days, and for changes in contact information.
In the section of the form titled "REASON FOR REGISTRATION," Sequeira checked the box for "ANNUAL." When asked on cross-examination why she accepted appellant's annual registration form even though it was not within five working days of his birthday, she testified there was a reason he came to register that day, but she could not remember what the reason was. She also explained that appellant's January 16, 2020, registration did not excuse him from having to register within five working days of his June 6, 2020, birthday.
Sequeira watched as appellant reviewed, initialed, signed, and dated the registration form. She did not recall if appellant had any questions. A copy of the completed form was admitted into evidence.
The registration form included three pages of "REGISTRATION REQUIREMENTS," and states the registrant must read each section and initial next to it. One of the requirements listed on the form is as follows: "I must annually update my registration information in person, within five (5) working days before or after my birthday, at the law enforcement agency having jurisdiction over my residence address or where I am currently present as a transient. Annual updates begin with my first birthday following registration or change of address. (PC § 290.012)." The registrant is also required to sign each page of the form. Just above the signature line, the form reads as follows: "I have been notified of my duty to register as a sex offender pursuant to PC §§ 290-290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 3, 4, and 5 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements ... is punishable as a criminal offense."
In July 2020, Sequeira received a notification from the Department of Justice that appellant did not register within five working days of his birthday. She attempted to contact appellant by phone but was unable to reach him. On July 15, 2020, she notified a detective with the Stanislaus County Sheriff's Office that appellant was not in compliance with his registration requirements. The detective located appellant at his Stanislaus County residence and placed him under arrest.
The parties stipulated that in April 2019, appellant was convicted of one count of failing to annually register (§ 290.012, subd. (a)) from 2012 to 2017, and one count of failing to report an address change in October 2016 (§ 290.013).
DISCUSSION
I. Any Presumed Instructional Error was Harmless Under any Standard.
Appellant contends the trial court erred by instructing the jury with CALCRIM No. 250 (Union of Act and Intent: General Intent), because the offense of failure to register requires actual knowledge of the duty to register. He argues the language in CALCRIM No. 250 that "it is not required that [appellant] intend to break the law" was misleading because it implied that the People did not need to prove actual knowledge to find appellant guilty.
A. Background.
The jury was instructed with CALCRIM No. 250 as follows:
"The crime charged in this case requires proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of the crime in this case of failing to annually register as a convicted sex offender true, the person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent.
"A person acts with wrongful intent when he or she intentionally does a prohibited act or fails to do a required act. However, it is not required that he or she intended to break the law. The act required is explained in the instruction for the crime."
The jury was also instructed with CALCRIM No. 1170, which set forth the elements of the offense of failure to register. As is pertinent here, the instruction stated the People must prove appellant "actually knew that he had a duty under Penal Code [section] 290 to register as a sex offender, and that he had to register within five working days of June 6th, 2020," and that he "willfully failed to annually update his registration." The instruction specified that "[s]omeone commits an act willfully when he or she does it willingly or on purpose."
Defense counsel did not object to the above instructions.
B. Standard of review.
We review a claim of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) "When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.) We presume jurors are intelligent persons capable of understanding and correlating all instructions given. (People v. Gonzales (2011) 51 Cal.4th 894, 940; People v. O'Malley (2016) 62 Cal.4th 944, 991.) "We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given." (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
C. Any presumed error was harmless.
In People v. Garcia, our high court explained that the offense of willfully failing to register as a sex offender "requires actual knowledge of the duty to register," reasoning that "one cannot purposefully fail to perform an act without knowing what act is required to be performed." (People v. Garcia (2001) 25 Cal.4th 744, 752.) Subsequently, in People v. Barker, the high court concluded that CALJIC No. 3.30 (concurrence of act and general criminal intent), which is substantially similar to CALCRIM No. 250, may erroneously lead a jury to believe "that a defendant may be guilty of violating section 290 even if unaware of his or her obligation to register." (People v. Barker (2004) 34 Cal.4th 345, 361.)
In addition to the above cases, appellant relies on the Bench Notes to CALCRIM No. 250, which state the instruction "must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense." Respondent counters that the jury instructions as a whole were not misleading because CALCRIM No. 1170 specified that the jury must find appellant had actual knowledge of his duty to register.
We need not resolve the merits of appellant's instructional error claim because any presumed error was harmless. Depending upon the basis of the claimed error, instructional error is reviewed under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Under the more stringent Chapman standard, which applies to errors of constitutional dimension, reversal is required unless the reviewing court can conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.) Under the alternative Watson standard, which applies to errors of state law, reversal is not required unless it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
We need not decide whether the Chapman or Watson standard for prejudicial error applies here because the error was harmless under either standard. The evidence that appellant had actual knowledge of his obligation to register was overwhelming. Appellant has had to annually register as a sex offender since 2008. When he failed to do so between 2012 and 2017, he was charged with a crime, and convicted in April 2019. Moreover, when appellant registered in January 2020, he initialed and signed portions of the registration forms in which he reaffirmed his knowledge that he must annually register within five working days of his birthday. Considering the number of years appellant has been subject to the annual registration requirement, the forms he signed confirming his knowledge of the requirement, and the fact that he has faced criminal prosecution and conviction for his failure to register in the past, the record amply demonstrates appellant was aware of his registration obligation.
In addition to the overwhelming evidence of actual knowledge, we observe the jury was instructed that the People must prove appellant "actually knew that he had a duty under Penal Code [section] 290 to register as a sex offender, and that he had to register within five working days of June 6th, 2020." This clear and unequivocal instruction negated the possibility that the jury was unaware of the actual knowledge element.
Appellant's sole defense at trial was that he mistakenly believed his January 2020 registration satisfied his annual registration requirement. Having received the above instruction, the jury rejected this defense theory and convicted appellant. Accordingly, we conclude beyond a reasonable doubt that CALCRIM No. 250 did not contribute to the verdict, and any presumed error was harmless.
D. Appellant was not prejudiced by the failure of defense counsel to request a mistake of fact instruction.
Appellant raises the alternative argument that the trial court should have instructed the jury on mistake of fact (CALCRIM No. 3406). Appellant concedes the claim is forfeited because defense counsel did not request a mistake of fact instruction. (See People v. Covarrubias (2016) 1 Cal.5th 838, 874 &fn. 14.) Nonetheless, appellant argues we should still consider the issue based on ineffective assistance of counsel.
To prove ineffective assistance, appellant must show that defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that, in the absence of counsel's failure, it is reasonably probable that the result of the sentencing proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Id. at p. 697.)
Here, appellant fails to establish prejudice for the same reasons stated above. As we explained, the evidence that appellant had actual knowledge of his duty to register was overwhelming. The jury was instructed that it must find appellant knew of his duty to register within five working days of his birthday, and it rejected appellant's defense that he was unaware of said requirement. Accordingly, it is not reasonably probable that a mistake of fact instruction would have impacted the outcome of appellant's trial, because there is no evidence appellant "[reasonably and] mistakenly believed" he did not need to register within five working days of his birthday. (CALCRIM No. 3406.)
II. The Trial Court did not Abuse its Discretion in Excluding as Irrelevant the Testimony of a Potential Defense Witness.
Prior to trial, the trial court granted the People's motion to exclude the testimony of Officer Gina Reno, who the defense proposed as a possible witness. Appellant contends the trial court's ruling was an abuse of discretion, and that it violated his rights to due process, confrontation, to present a complete defense, and to truth-in-evidence. We disagree. The trial court correctly ruled that Officer Reno's testimony was irrelevant and excluding said testimony was well within the trial court's discretion.
A. Background.
Prior to trial, the People moved to exclude Reno as a witness. Defense counsel argued Reno held the position of section "290 registrar" immediately prior to Sequeira, and therefore may be able to testify to the training Sequeira received. Additionally, defense counsel claimed Reno could testify as to whether she was aware of section 290 registrants being allowed to annually register more than five working days from their birthday.
The People responded that Reno's testimony regarding Sequeira's training is not relevant, and that Sequeira can testify to the training that she has received. The People also argued that it was irrelevant whether other registrants were allowed to register outside of the five-day window. The People noted that appellant's records indicated Reno had previously registered appellant on May 30, 2019.
The trial court granted the motion to exclude, stating: "All right. So the Court is not allowing the testimony of Ms. Reno.
It is not relevant. Ms. Reno probably doesn't even have any knowledge as to what training the individual who provided the register-who was the registrant at the appropriate time in June, not going to have any knowledge about that.
"And furthermore, whether he registered with her in the past, just has no relevance here. It's an annual requirement and then one on your birthday. What he did in the past has no relevance here."
B. Standard of review.
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
"We review a trial court's ruling to exclude evidence as irrelevant for abuse of discretion." (People v. Mickel (2016) 2 Cal.5th 181, 219.)
C. The trial court acted within its discretion.
We conclude the trial court correctly excluded Reno's proffered testimony as irrelevant. Appellant made no offer of proof showing that Reno had knowledge of Sequeira's training, or how said training would have been relevant to a disputed issue of fact at trial. Similarly, appellant failed to demonstrate that other section 290 registrants being allowed to register outside of the five-day window is relevant to whether appellant is guilty of failing to register.
Appellant contends the fact that Reno registered appellant on May 30, 2019, demonstrates that appellant has been previously allowed to register outside of the five-day window. However, appellant incorrectly asserts that May 30, 2019, is more than five working days from his June 6, 2019, birthday. May 30, 2019, fell on a Thursday, and June 6, 2019, fell on the following Thursday. Excluding the intervening Saturday and Sunday, May 30, 2019, was within five working days of June 6, 2019. If anything, Reno's testimony on this point would have benefitted the People by showing appellant previously registered within five working days of his birthday, suggesting he had actual knowledge of his registration obligations.
Pursuant to Code of Civil Procedure section 12, "The time in which any act provided by law is to be done is computed by excluding the first day, and including the last[.]"
Having concluded the trial court's evidentiary ruling was proper, we reject appellant's assertion that the ruling violated his state and federal constitutional rights. As our high court has explained, "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. (People v. Hall (1986) 41 Cal.3d 826, 834; see also People v. Jennings (1991) 53 Cal.3d 334, 372.) Therefore, this claim is without merit.
III. The Prosecutor did not Refer to Matters not in Evidence During Closing Argument. In any Event, the Claim is Forfeited, and any Presumed Error was Harmless.
At trial, the parties stipulated that appellant suffered a conviction based on his failure to register between 2012 and 2017. During rebuttal, the prosecutor argued the absence of criminal charges in 2018 and 2019 suggests appellant registered both years within five working days of his birthday in accordance with section 290.012, subdivision (a).
Appellant contends the prosecutor committed misconduct by referring to matters not in evidence, and that defense counsel was ineffective for failing to object. We conclude the prosecutor's argument was a reasonable inference based on the evidence. Regardless, the claim is forfeited, and any presumed error was harmless under any standard.
A. Background.
During closing argument, defense counsel argued the evidence showed appellant believed he had met the annual registration requirement because Sequeira provided him a registration form marked "annual," and she accepted the form after appellant signed it.
During rebuttal, the prosecutor stated:
"[Defense counsel] touched on one thing, and I touched on it as well, that [appellant's] prior convictions during 2012 and 2017-prior conviction, because it was only one, for a brief time period was only to be used for the issue of knowledge. That is true.
"Ladies and gentlemen, we are not here arguing or discussing his prior failure to register in 2018 and 2019. His failure to register is from 2020. So for two years using common sense and logic, one can assume [appellant] registered. He registered in compliance and in conformity with the requirements of the 290 requirements. He did everything he was supposed to do. So for two years he knew what he was supposed to do. So no one needed to explain anything to him. He knew how it worked."
Defense counsel did not object to the prosecutor's argument.
B. Standard of review.
Prosecutorial misconduct occurs when" '[a] prosecutor ... uses deceptive or reprehensible methods to persuade the jury.'" (People v. Parson (2008) 44 Cal.4th 332, 359.) "When a claim of misconduct is based on the prosecutor's comments before the jury . . .' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." '" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)
A prosecutor may not "refer[] in argument to matter outside the record." (People v. Pinholster (1992) 1 Cal.4th 865, 948, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) However, a prosecutor "enjoys wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom." (People v. Hamilton (2009) 45 Cal.4th 863, 928.)
C. The claim is forfeited.
As a threshold matter, respondent contends appellant forfeited his claim of prosecutorial misconduct by failing to raise a timely objection. We agree. "To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 305.) Appellant did not object at trial to this aspect of the prosecutor's arguments, and this was not the type of alleged error that could not have been cured by an admonition from the court. (See People v. Hill (1998) 17 Cal.4th 800, 820.) Accordingly, this claim is forfeited.
D. The prosecutor's argument was proper.
In any event, we conclude the prosecutor did not refer to evidence outside of the record. Instead, the prosecutor asked the jury to draw a reasonable inference from the evidence before them. Appellant's conviction for failing to register between 2012 and 2017 shows actual knowledge of his duty to register, because he was prosecuted and convicted for failing to comply with said duty. Given that appellant has been required to register since 2008, it was reasonable to infer that appellant complied with his registration obligations during the years he was not prosecuted, including 2018 and 2019.
Appellant also suggests the prosecutor knew the inference appellant properly registered in 2019 was false, because according to the prosecutor's statements to the court prior to trial, appellant registered in 2019 outside of the required five-day window. But as we explained above, May 30, 2019, was within five working days of appellant's June 6, 2019, birthday. Accordingly, the prosecutor did not argue for an inference she knew to be false, and misconduct did not occur.
E. Any presumed error was harmless.
Even assuming the prosecutor's argument was improper, any presumed error was harmless under any standard. As we have explained, the evidence that appellant knew of his registration requirement was overwhelming. For this reason, there is no basis to conclude the prosecutor's argument contributed to the jury's verdict.
IV. Cumulative Error.
Appellant raises a claim of cumulative error. He contends that, based on the totality of some of the errors identified above, he suffered a fundamentally unfair trial. We disagree.
"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
We reject appellant's claim of cumulative error because we have denied all of his individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) Taking all of appellant's claims into account, we are satisfied that he received a fair adjudication regarding his guilt.
V. Appellant is Entitled to Monetary Credit for Excess Custody Credits Against his Restitution fine. We Order the Restitution Fine Stricken.
Appellant was sentenced to the middle term of two years in state prison. The court also ordered him to pay a $600 restitution fine pursuant to section 1202.4, subdivision (b).
By the time appellant was sentenced, he had already served 482 actual days in custody, and the trial court awarded him an additional 482 days of conduct credit pursuant to section 4019. At sentencing, appellant had a total of 964 custody credits, which exceeded his two-year sentence by 234 days.
Appellant contends, and respondent concedes, he is entitled to receive monetary credit against his $600 restitution fine for the additional days he served in custody. We agree. Per section 2900.5, subdivision (a), "In all felony and misdemeanor convictions ... all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, credited to the period of confinement pursuant to Section 4019, ... shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence." Thus, "if a defendant is 'overpenalized' by serving presentence days in custody in excess of his imposed imprisonment term, those excess days are to be applied to the defendant's court-ordered payment of monies that serve as punishment, as opposed to court-ordered payment of monies for nonpunitive purposes." (People v. Robinson (2012) 209 Cal.App.4th 401, 407.)
"A restitution fine is punishment." (People v. Kunitz (2004) 122 Cal.App.4th 652, 656; see People v. Duenas (2019) 30 Cal.App.5th 1157, 1169 ["[T]he restitution fine is intended to be, and is recognized as, additional punishment for a crime."].) Appellant's 234 days of excessive credit at a rate of $125 per day is more than sufficient to satisfy the restitution fine. Thus, we order the restitution fine stricken, and direct the trial court to amend the abstract of judgment accordingly.
DISPOSITION
The restitution fine is ordered stricken. The trial court is directed to issue an amended abstract of judgment consistent with this opinion and forward a copy to the appropriate entities. In all other respects, the judgment is affirmed.
WE CONCUR: HILL, P. J. MEEHAN, J.