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People v. Thatcher

California Court of Appeals, Third District, Tehama
Apr 28, 2009
No. C058720 (Cal. Ct. App. Apr. 28, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ROY THATCHER, Defendant and Appellant. C058720 California Court of Appeal, Third District, Tehama April 28, 2009

NOT TO BE PUBLISHED

Super. Ct. No. NCR72350

CANTIL-SAKAUYE, J.

After a jury was waived and other charges were dismissed, the trial court found defendant guilty of a misdemeanor, giving false information to a peace officer (Pen. Code, § 148.9, subd. (a)), and a felony, failing to annually update his sex offender registration within five working days of his birthday (former Pen. Code, § 290, subd. (a)(1)(D), renumbered as current § 290.012). The trial court also found two strike allegations to be true (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to prison for 25 years to life for the felony, and imposed a concurrent sentence for the misdemeanor. Defendant timely filed this appeal.

Defendant raises a number of issues regarding his felony conviction, the strikes and his felony sentence. The Attorney General concedes no substantial evidence supports the felony conviction. Based on our review of the case, we accept the concession and reverse the felony conviction for lack of evidence. Accordingly, we need not consider the other issues raised by defendant on appeal.

BACKGROUND

We omit factual and procedural details that do not pertain to the dispositive issue raised in this appeal.

Effective October 13, 2007, the sex offender registration laws have been renumbered, without substantive change for purposes of this appeal, and are now collectively referred to as the Sex Offender Registration Act (SORA). (Stats. 2007, ch. 579, § 8.) For convenience, we will refer to the provisions applicable at the time of the alleged crime and to the newly-renumbered, current, provisions.

Penal Code section 290.012, subdivision (a), formerly section 290, subdivision (a)(1)(D), provides in relevant part as follows: “Beginning on his or her first birthday following registration or change of address, the person [required to register] 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.” (Stats. 2007, ch. 579, § 20.) We will refer to this as the annual update provision.

Penal Code section 290, subdivision (b), formerly section 290, subdivision (a)(1)(A), provides that a person required to register must notify the local authorities within five working days of a change of address. (Stats. 2007, ch. 579, § 8.) We will refer to this as the address change provision.

Count I of the information pled: “The above defendant, on or about August 1, 2007... being a person required to update his or her registration annually, within 5 working days of his or her birthday... did willfully and unlawfully violate the provision of Penal Code section 290, requiring an annual update of registration. (SEC. PC290(a)(1)(D))” This charged a violation of the annual update provision, both textually and by referencing the former statutory designation. It does not charge a violation of the address change provision.

The trial court heard the following evidence. Two peace officers testified that on August 1, 2007, they spoke with defendant at a trailer park in Corning, and he told them his name was “Toby Wills.” Officials from the Corning Police Department and from the Tehama County Sheriff’s Office each testified defendant had not registered as a sex offender. The manager of the park testified defendant moved in on July 5, 2007. Documents showed defendant had been convicted of sexual offenses in Josephine County, Oregon in 1999 and in Inyo County, California in 1988, and these documents also showed that he was born on March 6, 1962. According to one document, defendant moved to Oregon from California in 1993. Defendant had signed Oregon documents in which he acknowledged that, under Oregon law, if he moved out of Oregon he had 10 days to register as a sex offender in his new state. There was no evidence that he signed similar documents in connection with his 1988 Inyo County conviction.

The trial court found defendant “guilty as charged in Count One, felony failure to update registration annually” and guilty of the misdemeanor of giving false information to a peace officer. The trial court also found true the Josephine County conviction alleged as a strike, and, after reopening the case, found true the Inyo County conviction alleged as another strike. The trial court sentenced defendant to 25 years to life under the Three Strikes law, and imposed a concurrent six-month sentence for the misdemeanor, with credit for time served and conduct credit totaling 398 days.

DISCUSSION

“The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt.” (People v. Barnes (1986) 42 Cal.3d 284, 303.) On this record, defendant may have violated the Oregon law that he register within 10 days of moving to another state, here California. He also may have violated the California law that he register within five days of changing his address. But the evidence does not show that defendant violated the only provision charged in the information, the annual update provision.

The five working days in which to satisfy the requirement in the annual update provision commences “[b]eginning on his or her first birthday following registration or change of address....” (Pen. Code, § 290.012, subd. (a); former § 290, subd. (a)(1)(D); see Judicial Council of Cal. Crim. Jury Instns. (2009) CALCRIM No. 1170; 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000 & 2008 supp.) Punishment, § 184.)

Defendant’s birthday is March 6. The record shows defendant lived in California as of July 5, 2007. There is no evidence in the trial record that he lived in California after 1993. The probation report does contain an admission by defendant that he moved to California in 2002, but no evidence of such an admission was introduced at trial. So far as the trial record shows, his duty to annually update his registration would not begin to run until March 6, 2008. Nor does the fact that he has a 1988 Inyo County conviction support a reasonable inference that he continued to live in California, because the record shows he lived in Oregon later. It would be speculation to conclude defendant lived in California before July 5, 2007. (See People v. Raley (1992) 2 Cal.4th 870, 891 [reasonable inference cannot be based on speculation].)

As framed by the Attorney General, by way of concession: “[S]ince the record shows that appellant did not move to Tehama County until July 5, [2007], and may have been residing in Oregon prior to that time, and since there was no proof that appellant resided in California within 5 working days of his birthday on March 6, there was insufficient evidence of the elements of the charged offense.” In light of the record, we accept the Attorney General’s concession.

The Attorney General also concedes no substantial evidence shows defendant had actual knowledge of his duty to register in California. (People v. Garcia (2001) 25 Cal.4th 744, 751-754.) The Inyo County documents do not show that he was advised of his registration duties. The Josephine County documents do not show that he was advised of his registration duties under California law. Accordingly, we accept this concession, too.

The Attorney General correctly contends the record contains evidence that defendant violated the requirement in the address change provision. If defendant moved to California on July 5, 2007, and had not registered by the time of his arrest on August 1, 2007, he perforce failed to register within five working days, as required. (Pen. Code, § 290, subd. (b), formerly § 290, subd. (a)(1)(A).) But the Attorney General concedes the address change offense is not included within the annual update offense. Accordingly, we cannot modify the judgment to substitute the nonincluded offense that might have been charged. (See People v. Lagunas (1994) 8 Cal.4th 1030, 1034-1039.)

The Attorney General also concedes that there was no implied amendment to the charge and therefore the failure to plead the correct section is not harmless. In People v. Musovich (2006) 138 Cal.App.4th 983, we addressed a claim of variance where the pleading was general, charging Musovich with violating former section 290, subdivision (g)(2), for being “‘a person required to register under this section based on a felony who did willfully violate any requirement of this section.’” (People v. Musovich, supra, at p. 987.) Although this did not specify the precise manner in which Musovich violated a registration requirement, we held the claimed variance, or ambiguity, was harmless because the prosecutor elected a specific offense, the trial court instructed the jury on that offense, and the defense was aimed at that offense. (Id. at pp. 988-989.)

This case presents a different problem. The information pled a specific registration offense, but the evidence does not support that offense. In such circumstances, we accept the Attorney General’s subsidiary concession, that the failure to plead the correct offense was not harmless.

The Attorney General contends defendant may be charged in a new case with the address change offense, consistent with double jeopardy principles. Defendant contends this would result in a multiple prosecution barred by Penal Code section 654, a violation of the Kellett rule. (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827; see People v. Britt (2004) 32 Cal.4th 944, 954-956 [Kellett rule applied in sex offender registration case].) If the District Attorney files a new case, defendant can interpose any defense he chooses. We decline to express an advisory opinion on the application of the Kellett rule to this case, based on this record.

DISPOSITION

The conviction for failing to register as a sex offender is reversed for lack of evidence. The judgment is otherwise affirmed. The cause is remanded to the trial court for further proceedings consistent with this opinion.

We concur: SCOTLAND P. J., SIMS, J.


Summaries of

People v. Thatcher

California Court of Appeals, Third District, Tehama
Apr 28, 2009
No. C058720 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. Thatcher

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ROY THATCHER, Defendant…

Court:California Court of Appeals, Third District, Tehama

Date published: Apr 28, 2009

Citations

No. C058720 (Cal. Ct. App. Apr. 28, 2009)