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People v. Tovar

California Court of Appeals, Fourth District, First Division
Feb 7, 2011
No. D056631 (Cal. Ct. App. Feb. 7, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JACK ALBERT TOVAR, Defendant and Appellant. D056631 California Court of Appeal, Fourth District, First Division February 7, 2011

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, No. SCD217943, Stephanie Sontag, Judge.

AARON, J.

I.

INTRODUCTION

Defendant Jack Albert Tovar appeals from his convictions for failing to register as a sex offender as required under Penal Code sections 290.012, subdivision (a) (count 1) and 290.013, subdivision (a) (count 2). Tovar contends that there is insufficient evidence to support the trial court's implicit finding with respect to count 1 that Tovar was residing in California for the five working days after Tovar's birthday in 2008, because there is no evidence establishing that Tovar was living, working or studying in San Diego or anywhere else in California for five working days after his birthday. The People concede that Tovar's residing, working, or studying in the state during the five days following his birthday is an element of the offense charged in count 1. Tovar also challenges both of his convictions on ex post facto grounds, arguing that changes to the sex offender registration law that occurred after his commission of the original offense and his conviction for that offense "make appellant's punishment for the underlying offense more burdensome." Specifically, Tovar contends that the annual, lifelong registration requirements, and the change of the nature of the offense for noncompliance from a misdemeanor to a felony, amount to retroactive punishment for his original offense.

Further statutory references are to the Penal Code unless otherwise indicated.

Section 290.012, subdivision (a) provides in pertinent part: "Beginning on his or her first birthday following registration or change of address, the person 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."

Section 290.013, subdivision (a) provides in pertinent part: "Any person who was last registered at a residence address pursuant to the Act who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, shall, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, the new address or transient location, if known, and any plans he or she has to return to California."

We conclude that the People failed to present sufficient evidence that Tovar was residing, working or studying in California for the entire five working days following his birthday, and therefore, that his conviction for failing to register within five working days after his birthday (§ 290.012, subd. (a)) must be reversed.

We reject Tovar's ex post facto argument with respect to the application of the new sex offender registration requirements to him. We therefore affirm his conviction on count 2. In light of our reversal on count 1, we remand the case to the trial court for resentencing.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

Tovar stipulated that on August 11, 1992, he pled guilty to one count of continuous child abuse, within the meaning of section 288.5, subdivision (a). As a result of his conviction for this offense, Tovar was required to register as a sex offender pursuant to former section 290, subdivision (g)(2) (now § 290, subd. (c)).

Tovar was born on April 3, 1957. Between 1998 and April 4, 2007, Tovar registered 12 times and complied with the registration requirements set forth in section 290 et seq. by annually updating his registration with, and providing changes of address to, the San Diego Police Department.

From March 2007 until April 9, 2008, Tovar lived at the Pacific Point Apartments on Palm Avenue. Tovar moved out of that apartment on April 9, 2008. The apartment manager observed Tovar loading his belongings into a truck and trailer.

On May 28, 2008, approximately seven weeks after Tovar had moved out of the Pacific Point Apartments, Tovar went to the Department of Motor Vehicles (DMV) in El Cajon and applied for a new driver's license, with a new residence address. The new address that Tovar provided on May 28, 2008, was on Harris Ranch Road in Potrero.

At no point in time did Tovar register his Harris Ranch Road address with the San Diego County Sheriff's department-the entity that has jurisdiction over the Potrero area.

Between January 12, 2009, and February 24, 2009, Tovar lived at the Farm House RV Park in Chula Vista.

Jose Green, an investigator with the San Diego County District Attorney's office, was asked to investigate Tovar based on a notification from the San Diego Police Department that Tovar had fallen out of compliance with his sex offender registration requirements. Green's regular duties included performing daily audits to check registrants' addresses and verifying the registration information provided by the registrants. In November 2008, Green searched the statewide computer system "VCIN" (Violent Crimes Information Network) and determined that Tovar had not registered in 2008. Through a DMV database, Green learned that Tovar had obtained a driver's license with a new residence address in Potrero. Green went to the post office in Potrero and learned that Tovar had been receiving mail at the Harris Ranch Road address, on and off, for a period of time. There was no evidence presented as to how long Tovar had been receiving mail at that address.

On February 25, 2009, police arrested Tovar in Chula Vista as he was leaving a San Diego County Department of Health and Human Services office.

B. Procedural background

By amended information filed July 16, 2009, Tovar was charged with one count of failing to register as a sex offender within five working days of his birthday (§ 290.012, subd. (a); count 1) and one count of failing to register his change of address within five working days of moving (§ 290.013, subd. (b); count 2). The information also alleged that Tovar had suffered a prior strike conviction, i.e., his conviction for continuous child abuse, pursuant to section 288.5, subdivision (a).

Tovar waived his right to a jury trial. After a bench trial, the court found Tovar guilty on both counts.

At sentencing on November 20, 2009, the trial court struck Tovar's prior strike and sentenced him to three years' probation with various conditions, including that Tovar serve 365 days in custody.

Tovar filed a timely appeal on January 19, 2010.

III.

DISCUSSION

A. Because the People presented no evidence that Tovar was living, working or studying in California for the entirety of the five working days following his birthday, the evidence is insufficient to establish that Tovar was required to register under section 290.12, subdivision (a)

Tovar contends that the prosecution failed to present any evidence, much less sufficient evidence, to establish that he was living, working or studying in California for the entirety of the five working days after his birthday, such that he was required to register under section 290.12, subdivision (a)-the annual birthday registration requirement.

When a defendant challenges the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "Substantial evidence includes circumstantial evidence and any reasonable inferences flowing therefrom." (People v. Cole (1994) 23 Cal.App.4th 1672, 1678.)

"[R]easonableness [is] the ultimate standard under the substantial evidence rule. 'The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.' " (People v. Kunkin (1973) 9 Cal.3d 245, 250, citation omitted.) "The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact. '[In] determining whether the record is sufficient... the appellate court can give credit only to "substantial evidence, i.e., evidence that reasonably inspires confidence and is 'of solid value.' " ' [Citation.]" (Ibid.)

Tovar was convicted in count 1 of failing to register as required under section 290.012, subdivision (a). That subdivision provides in relevant part: "Beginning on his or her first birthday following registration or change of address, the person 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."

In turn, section 290, subdivision (b) provides:

"Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act." (Italics added.)

The essence of the offense charged in count 1, under section 290.012, subdivision (a), is the failure of a sex offender to update his or her registration made pursuant to section 290, subdivision (b) within five working days of his or her birthday every year. Under section 290, subdivision (b), only those sex offenders who live, work, or go to school in California are required to initially register with the proper authorities. It follows that only those people who are required to register pursuant to section 290, i.e., those who live, work, or study in California, are also required to annually update their registration pursuant to section 290.012. The People make no argument to the contrary, and appear to concede that the prosecution bore the burden to prove that Tovar was a resident of California, or that he worked or attended school in California, on his birthday, as well as on the five working days after his birthday, in order to establish that Tovar committed the offense of failing to register as required under section 290.012, subdivision (a). At trial the prosecutor argued:

The People have alleged throughout this case that Tovar was residing in California, and did not attempt to establish that he was either working or attending school in California.

"Looking at element number two, we know that the defendant resided in San Diego. This I don't believe is going to be an issue. There's no evidence to the contrary that he wasn't living in San Diego. We know that from March of 2007 up until April of 2008 when he was evicted he was living in the Pacific Point Apartments on Palm Avenue. We know that he was evicted on April 9th of 2008. We know that on May 28th of 2008 the defendant walked into the DMV in El Cajon. We know that he was receiving mail at the Potrero address.... [¶]... So again, I don't believe that this is an issue that the defendant resided in San Diego. We have proven element two."

On appeal, the People make a similar argument, conceding that California residency is an element of the offense at issue here, and contending that Tovar is mistaken in his claim that there is insufficient evidence that he was living in California during the relevant time period. The People assert that "[w]hile appellant is correct that residency in the state must be proven, he is mistaken as to his claim that there was insufficient evidence that he continued to live in California after April 9, 2008."

The evidence on which the People rely in asserting that there is substantial circumstantial evidence to demonstrate that Tovar "was in California between April 9, 2008 and February 25, 2009" is the following: (1) Tovar vacated his Palm Avenue apartment on April 9, 2008; (2) on May 28, 2008, Tovar applied for and obtained a new California driver's license from a DMV office in El Cajon, California, and listed his residence address as "1030 Harris Ranch Road" in Potrero, California; (3) Tovar received mail at the Potrero post office; (4) Tovar lived at the Chula Vista RV park from January 12 to February 24, 2009, and was arrested in Chula Vista on February 25, 2009.

We take judicial notice that in 2008, Tovar's birthday, April 3, fell on a Thursday, which made Thursday, April 10, the fifth working day after April 3. Here, as the People have pointed out, there was evidence that Tovar was living in California until April 9, 2008. However, there is no evidence whatsoever as to Tovar's location or residence as of April 10, 2008.

The People argue that "[c]ontrary to appellant's contention, strong circumstantial evidence was presented to prove appellant continued to reside in California, specifically, San Diego County, and there was no evidence he was residing anywhere else." However, it was not Tovar's burden to present evidence that he was residing outside of California as of April 10. Rather, it was the People's burden to establish that Tovar was, in fact, required to register, and that burden included presenting evidence from which one could determine, beyond a reasonable doubt, that Tovar continued to reside, work or study in California on April 10, 2008.

In People v. Wallace (2009) 176 Cal.App.4th 1088 (Wallace), another appellate court recently considered a question similar to the question raised in this case, concerning the sufficiency of the evidence to support a defendant's conviction under former section 290, subdivision (a)(1)(A). At the relevant time, former section 290, subdivision (a)(1)(A) provided: " 'Every person [having a qualifying conviction] for the rest of his or her life while residing in California... shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides.' [Citation.]" (Wallace at p. 1100.)

This subdivision was redesignated section 290, subdivision (b) as of 2007. (Wallace, supra, 176 Cal.App.4th at p. 1100, fn. 7, citing Stats. 2007, ch. 579, § 8, eff. Oct. 13, 2007.)

The Wallace court noted that the statute's provision that it applied to " '[e]very person [having a qualifying conviction] for the rest of his or her life while residing in California, ' " meant that "if [the defendant] left California after vacating his last registered address in Contra Costa County, his failure to register a new address or location anywhere in California within five working days would not amount to a violation of this provision." (Wallace, supra, 176 Cal.App.4th at pp. 1102-1103, italics in original.) The Wallace court noted that "there was no evidence presented to the jury regarding appellant's whereabouts after he left his last registered address at 875 East 12th Street in Pittsburg, Contra Costa County." (Id. at p. 1003.)

As in this case, in Wallace, the People "suggest[ed] the jury could have nonetheless inferred that appellant remained in California in April 2007 based upon other evidence in the record." (Wallace, supra, 176 Cal.App.4th at p. 1103.) The "other evidence in the record" to which the People referred was evidence that Wallace had registered an address in Pittsburg, Contra Costa County, on January 11, 2006. (Id. at p. 1094.) However, after that date, Wallace never again contacted the Pittsburg Police Department and did not register anywhere else in California. (Ibid.) On October 1, 2006, a real estate broker listed the property connected to Wallace's Pittsburg address, and on November 29, 2006, when the broker inspected the property, he found it to be a duplex with a commercial space on the ground floor and a residential unit on the second floor. The residential unit was vacant. (Ibid.) Over the next six months, the broker inspected the property six times, and never saw the defendant at the property on any of those occasions. In April 2007, a detective inspected the address listed on Wallace's registration form, and, after finding the residence vacant, sought an arrest warrant for Wallace. (Ibid.)

In considering whether this evidence was sufficient to support a finding that Wallace had been residing in the state after leaving his last registered address, the Wallace court reasoned, "[W]e cannot agree with the prosecution that the lack of any evidence regarding appellant's whereabouts in or about April 2007, even considered in light of appellant's prior registration history in California, was sufficient to permit a reasonable inference that appellant remained in California during that time period, which the statute clearly requires. [Citations.] Moreover, we decline to shift the burden to appellant to prove beyond a reasonable doubt that he was in fact residing outside California during that time. [Citations.]" (Wallace, supra, 176 Cal.App.4th at p. 1103-1104, italics omitted.) The Wallace court concluded that the defendant's conviction on that count had to "be reversed based upon the lack of evidence regarding his California residency during the time in question." (Id. at p. 1104.)

This case presents a slightly closer question with respect to the sufficiency of the evidence, in that, unlike in Wallace, there is some evidence that Tovar was residing in California approximately seven weeks after he vacated his previously registered address. Although one could infer that Tovar remained in the state after he left his Palm Avenue apartment, the fact that there is no evidence as to where Tovar was during the intervening seven weeks means that it is clearly possible that Tovar moved out of the state and returned in late May 2008. In such a situation, Tovar's conduct may have constituted a violation of one or more of the sex offender registration provisions set forth in section 290 et seq. However, his conduct would not have constituted a violation of section 290.012, subdivision (a), since Tovar would have been required to re-register his new address only upon his next birthday-the one following his relocation to California.

Because there was no evidence presented as to where Tovar was residing on April 10, 2008, and the circumstantial evidence does not lead to only one reasonable conclusion regarding where Tovar was residing on that date, his conviction for failing to register within five working days of his birthday must be reversed.

B. Ex post facto argument

Tovar contends that the imposition of additional registration requirements on him "that were not in effect at the time of [his] offense and conviction in 1992 violate the Ex Post Facto Clause of the United States and California Constitutions."

The legislature added new sex offender registration requirements in 1994. According to Tovar, in addition to imposing a new requirement in the form of annual registration on the offender's birthday, the amended law also made willful violation of the registration requirements a felony for persons who were required to register as a result of having been convicted of certain felony offenses. (See Stats. 1994, ch. 867, §§ 2, 7.) Tovar contends that requiring that he comply with the lifelong, annual birthday registration obligation, as well as changing the failure to meet this obligation to a felony offense rather than a misdemeanor, makes his punishment for the underlying sex offense more burdensome, in violation of ex post facto principles.

The California Supreme Court has already determined that the imposition of registration requirements for sex offenders does not violate ex post facto principles, stating:

"[W]e conclude that sex offender registration does not constitute punishment for purposes of ex post facto analysis, because the Legislature did not intend such registration to constitute punishment and the provision is not so punitive in nature or effect that it must be held to constitute punishment despite the Legislature's contrary intent." (People v. Castellanos (1999) 21 Cal.4th 785, 799.)

We thus reject Tovar's ex post facto claim concerning the annual registration requirements that were enacted after the dates of his offense and conviction.

We further reject Tovar's claim that the change in the law making the failure to fulfill one's sex offender registration requirements a felony rather than a misdemeanor violates ex post facto principles. "In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date. [Citations.]" (People v. Grant (1999) 20 Cal.4th 150, 157, italics added.) Here, the change in the law making failure to register a felony attaches new legal consequences to conduct that is completed after the law's effective date. Tovar is subjected to a felony conviction as a result of his failure to register as a sex offender-i.e., conduct that occurred long after the 1994 amendments to the sex offender registration law.

For these reasons, we conclude that Tovar's ex post facto claim is without merit.

IV.

DISPOSITION

Tovar's conviction for violating section 290.012, subdivision (a) is reversed on the ground that there is insufficient evidence in the record to support the conviction. Tovar's conviction for violating section 290.013, subdivision (a) is affirmed. The case is remanded to the trial court for resentencing.

WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.


Summaries of

People v. Tovar

California Court of Appeals, Fourth District, First Division
Feb 7, 2011
No. D056631 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Tovar

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JACK ALBERT TOVAR, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 7, 2011

Citations

No. D056631 (Cal. Ct. App. Feb. 7, 2011)