Opinion
H022521.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. CARLOS JAVIER UGARTE, Defendant and Appellant.
I. Statement of the Case
Defendant Carlos Javier Ugarte appeals from a judgment entered after a jury convicted him of failing to register as a sex offender (Pen. Code, § 290) and found that he had one strike prior felony conviction. The court imposed a lower term of 16 months for the conviction and doubled it under the "Three Strikes" law for a total sentence of 32 months. On appeal, defendant claims the court erred in failing to instruct the jury that knowledge of the registration requirement is an element of the offense and in giving CALJIC No. 17.41.1. He further claims defense counsel rendered ineffective assistance in failing to object to testimony about the purpose of the registration requirement and to the prosecutors comments during closing argument about the reasonable doubt standard.
All further statutory references are to the Penal Code unless otherwise specified.
We conclude that lack of instruction on the knowledge element of the offense compels reversal.
II. Facts
In 1989, defendant was convicted of assault with intent to commit rape (§ 220) and as a result was required to register as a sex offender. (§ 290, subd. (a)(2)(A).) In 1992, defendant registered in San Jose. In 1998, he moved to Los Banos and registered there. He registered again on March 8, 2000, at the same address in Los Banos.
In April 2000, Ramona Rodriguez, who lived in a first-floor apartment at 860 Calhoun Street in San Jose, sublet one of her bedrooms to Merica Vindiola and her three small children. On April 24, Rodriguez went on vacation, and when she returned, she encountered defendant, who had moved in with Vindiola, his wife. She told Vindiola that defendant could not live there, but Vindiola threatened to move. Rodriguez said go ahead. However, Vindiola and defendant remained. According to Rodriguez, defendant slept, showered, and kept clothes there, and she saw him almost every day.
Mrs. Frankie Candelaria Garcia lived in the apartment next to Rodriguezs apartment, and her bedroom was adjacent to Vindiolas bedroom. She testified that in April 2000, Vindiola moved in with her children followed by defendant. Garcia said she heard and/or saw defendant daily until June 2000. She too said that defendant would sometimes enter through the window. She said Rodriguez wanted defendant to leave.
Elisa Madrigal lives upstairs from Rodriguez and Garcia. She testified that defendant moved in with Vindiola in April 2000, and after that, she saw him there just about every day. She too said Rodriguez was unhappy that defendant was there.
Abigail Hernandez stayed regularly at her daughters apartment directly above Rodriguezs apartment. She testified that defendant started living downstairs shortly after Rodriguez left on vacation in April 2000. She saw and heard defendant on a daily basis. She knew Rodriguez was unhappy that defendant was living there. Hernandezs daughter Gloria de la Cerda also testified that defendant moved there in April 2000, and thereafter, she saw and heard him on a daily basis.
On June 16, 2000, Officer Matthew Christian of the San Jose Police Department performed a welfare check at the Rodriguez apartment. He spoke to defendant and, after running a check, learned he was required to register and had last registered in Los Banos. Christian searched the bedroom and found personal items belonging to defendant. Defendant was arrested, and thereafter Vindiola and her children moved.
The Defense
Rebecca Padilla, a ticket agent for Greyhound Bus in Los Banos, testified that on numerous occasions she sold defendant one-way tickets from Los Banos to San Jose. She first saw him buy a ticket in December 1999. She recalled that in May 2000, she saw him every week or every other week. In June, she saw him once. She said he would be gone for a week or two at a time.
Defendants aunt Eva Gonzales lives in Los Banos. She testified that defendant lived with his parents and siblings in Los Banos. She saw him regularly on Wednesdays, when he gave guitar lessons, and on weekends. She said he went to San Jose sometimes every two weeks.
Defendants father Carlos Ugarte testified that from April to June 2000, defendant lived three or four days per week with him in Los Banos. When defendant was in San Jose, he lived with his girlfriend. Ugarte did not know that they were married.
He did not recall telling a police officer that defendant stayed only two or three nights per week. However, Officer Joyce Taylor of the San Jose Police Department testified that defendants father told her defendant lived in Los Banos two or three days per week.
III. Failure to Instruct on the Knowledge Element of Failing to Register
After defendants trial, the California Supreme Court filed People v. Garcia (2001) 25 Cal.4th 744 (Garcia), which holds that to prove a failure to comply with the registration requirements of section 290, the prosecution has to prove that the defendant actually knew what he or she was supposed to do. There, the trial court instructed the jury only that the alleged failure to register must be willful and, using the standard CALJIC instruction No. 1.20, defining willfully, explained " `[t]he word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness . . . to make the omission in question. The word "willfully" does not require any intent to violate the law . . . . [Citation.]" (Garcia, supra, 25 Cal.4th at p. 751.) The trial court further instructed the jury that " `When the evidence shows that the person voluntarily did that which the law declares to be a crime, it is no defense that he did not know that the act was unlawful or that he believed it to be lawful. [Citation.]" (Ibid.)
On appeal, the Supreme Court explained that the definition of willfully "correctly requires a showing of purpose or willingness to act, or (as in this case) fail to act." (Garcia, supra , 25 Cal.4th at p. 754.) However, the court found the instruction to be incomplete because it did not clearly require the jury to find actual knowledge of the registration requirement. Thus, the court held that proper instructions should have expressly "require[] proof that, in addition to being formally notified by the appropriate officers as required by section 290, in order to willfully violate section 290 the defendant must actually know of his duty to register." (Ibid.) The court further held that it was error to give CALJIC No. 4.36, which explains that ignorance of the law is no excuse, because "on its face [the instruction] would allow the jury to convict defendant of failing to register even if he were unaware of his obligation to do so." (Ibid.) Nevertheless, the court concluded that reversal was not necessary. (Id. at p. 755.) There, the defendants offense involved only the basic duty to register his address. The court noted that the prosecution had presented "strong evidence" that the defendant actually knew he was required to register. Moreover, the court also noted that under the instructions given, the jury expressly found that the defendant had read and signed a notice regarding his basic duty to register. Thus, the jury rejected the defendants testimony that he signed but did not read the notice, which was the sole evidence supporting the claim that he did not even know he was supposed to register. (Ibid.) Under these particular facts, the court concluded that the instructional omission and error were harmless beyond a reasonable doubt. (Ibid.)
There, the defendant was deported to Mexico in February 1994, after he was released from prison. However, a few months later, he returned to California and lived with his sister in San Francisco. He went back to Mexico but returned, and in 1995, he was living in San Rafael, where he was arrested. He did not register when he lived in San Francisco or when he lived in San Rafael. (Garcia, supra, 25 Cal.4th at pp. 749-750.)
In determining whether the error here compels reversal, we find guidance in People v. Edgar (2002) 104 Cal.App.4th 210, a case factually similar to this case in that it involved a failure to register additional and temporary residences.
In Edgar, the prosecution introduced evidence that in 1993, prior to his release from prison, the defendant reviewed and signed, a registration form, which stated, among other things, " `I have been notified of my duty to register as a convicted sex offender pursuant to Section 290 of the California Penal Code. I understand that: [¶] My responsibility to register as a sex offender is a lifetime requirement. [¶] I must register within 14 days of coming into any city, county, or city and county in which I am domiciled with the law enforcement agency having jurisdiction over my place of residence. [¶] I must upon changing my residence, inform in writing within 10 days the law enforcement agency with which I last registered. " (People v. Edgar, supra, 104 Cal.App.4th at p. 213, italics in original.) Upon his release in August 1993, the defendant reviewed and signed another notice, containing identical language and registered, giving an address in San Francisco. In 1995, the defendant registered with the Daly City Police Department, giving an address on Clarinada Avenue in Daly City. (Ibid.) The prosecution also introduced evidence that between 1997 and 2000, in addition to the Clarinada residence, defendant lived for periods of time at a transient hotel in San Francisco and a homeless shelter. However, he did not inform relevant authorities within five days of obtaining these additional residences. (Id. pp. 213-215.)
As in Garcia, the trial court in Edgar gave CALJIC No. 1.20, defining willfully. In addition, the court gave CALJIC No. 3.30, informing the jury that failure to register is " a general intent crime and that `[g]eneral intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful. " (People v. Edgar, supra, 104 Cal.App.4th at p. 218.) The court also told the jury that a conviction for violating section 290 required proof that " `[t]he defendant willfully failed to inform in writing within five working days the law enforcement agency with which he last registered, the Daly City Police Department, of any new or additional address. " (Ibid.) However, the court did not instruct the jury that to willfully violate section 290 the defendant must actually know of his duty to register additional and temporary residences.
On appeal, the court noted that like the ignorance-of-the-law instruction (CALJIC No. 4.36) given in Garcia, the trial courts general intent instruction (CALJIC No. 3.30) would, on its face, allow the jury to convict defendant of failing to register even if he were unaware of his duty to register additional, temporary residences. (People v. Edgar, supra, 104 Cal.App.4th at p. 219.) The court also pointed out that during the relevant time period, section 290 did not expressly address the issue of additional, temporary residences, and therefore, neither the statute nor the forms the defendant signed provided him with " `clear notice " of his duty to register such places. (Id. at p. 220.) The court further stated, that "the trial courts instructions not only did not tell the jury about the necessity that appellant purposefully violate the registration statute, but the court compounded this error by instructing the jury that `[d]epending on the circumstances, one may have a single place of residence or more than one place of residence or no residence. One who has one place of residence and then adds a second place of residence has changed his residence within the meaning of this law and has a duty to report this change resulting in an additional residence even though he may also maintain a residence at the old place. Thus, the instructions violated due process by imposing criminal liability for failing to register without any need for the jury to find that appellant actually knew the law required him to register multiple residences. [Citations.]" (Ibid., fn. omitted, original italics.)
In addition, the court observed that the jury was not required to determine whether defendant actually knew that staying at a transient hotel or homeless shelter, even on a temporary basis, while still maintaining his residence at the Clarinada Avenue address, required him to notify authorities. "On the contrary, the courts special instruction informing the jury that a person has `changed his residence pursuant to section 290 by adding a second residence address, in conjunction with the other instructions in the case, entirely removed from the jury the issue whether appellant had knowledge that acquiring an additional residence required an additional registration." (People v. Edgar, supra , 104 Cal.App.4th at p. 221.) In this regard, the court pointed out that although there was evidence that the defendant knew about his basic duty to register if and when he changed his residence, there was no evidence that he knew that acquiring an additional residence constituted a change that triggered this duty to register. The court found the lack of such evidence "especially problematic" because the additional residences were a transient hotel and a homeless shelter, which necessarily tend to function as temporary lodging. (Ibid .) According to the court, "the nature of [these] additional residences makes the inference that [the defendant] knew of the duty to register these addresses even more tenuous than it otherwise would be." (Ibid., fn. omitted.)
Under the circumstances, the court reversed because it "[could] not conclude beyond a reasonable doubt that the same jury, properly instructed on the knowledge requirement, would have found that appellant was aware of his duty to register multiple addresses. [Citations.]" (People v. Edgar, supra, 104 Cal.App.4th at p. 222.)
More recently, this court in People v. Jackson (2003) 109 Cal.App.4th 1625 and Division Three of the First District Court of Appeal in People v. LeCorno (2003) 109 Cal.App.4th 1058 dealt with the lack of a knowledge instruction concerning the duty to register additional residences. In both cases, the courts, citing Edgar, concluded that the instructional omission was not harmless beyond a reasonable doubt.
We too find the analysis in Edgar persuasive and adopt it. Moreover, we find no material basis to distinguish this case from Edgar, LeCorno, and Jackson. Here, defendant was charged and convicted of failing to register "with the chief of police of the city in which he/she temporarily resided, and if he/she had no residence, was located, San Jose, within 5 working days of coming into the city." There was evidence from which the jury could find that starting in April 2000, defendant lived at both his parents home in Los Banos, where he was registered, and the room Vindiola was renting from Rodriguez in San Jose. The registration forms that he signed after his release from prison did not provide notice that he was required to register any additional, temporary residences. The court instructed the jury that defendant was charged with failing to register in a city where he temporarily resided. The court further gave CALJIC No. 1.20, defining willfully, which, as Garcia explains, does not convey the requirement of actual knowledge. The court also defined residence to include additional and/or temporary places and explained that under the law, the addition of a second, temporary residence constitutes a change in residence, triggering the duty to register. However, the courts instructions did not require the jury to determine whether defendant had actual knowledge of his duty to register an additional and/or temporary residence. Nor, as noted, did the courts instruction require the jury to find that defendant read and signed prior registration notices, as did the instructions in Garcia.
The People concede that there was instructional error concerning the knowledge element of a violation of section 290.
We note that section 290 was amended in 1999 to expressly require registration of multiple residences. (See stats.1999, ch. 901, § 1.5.) Section 290, subdivision (a)(1)(B) now provides, "(B) If the person who is registering has more than one residence address or location at which he or she regularly resides or is located, he or she shall register in accordance with subparagraph (A) in each of the jurisdictions in which he or she regularly resides or is located. If all of the addresses or locations are within the same jurisdiction, the person shall provide the registering authority with all of the addresses or locations where he or she regularly resides or is located." Because defendant last registered in 1998, the form he signed did not reflect changes in section 290.
Moreover, even if the forms suggested that defendant had a duty to register multiple residences, the jury here, unlike that in Garcia, was not required to find, and thus did not expressly find, that defendant read and signed the forms.
We further note that Rodriguez made it clear to defendant and Vindiola that she did not want defendant living in her apartment. Moreover, the nature of defendants living situation—a room within someone elses apartment—as did the transient hotel and homeless shelter in Edgar, makes the inference that he knew he was supposed to register on Calhoun Street even more tenuous than might otherwise be.
The circumstances here are distinguishable from those in Garcia, which involved only whether Garcia knew about the basic duty to register a residence, a duty clearly outlined in the registration forms, which the jury expressly found that Garcia read and signed. As in Edgar, LoCorno, and Jackson, this case involves a more specific aspect of the registration requirement: the duty of a person who has registered at one address to register any additional addresses at which he or she may temporarily reside. Under the circumstances, we cannot find beyond a reasonable doubt that the jurors implicitly found that defendant actually knew of his duty to register his additional residence on Calhoun Street. We also cannot confidently say there is no reasonable possibility that a properly instructed jury would have had a reasonable doubt concerning whether defendant had such actual knowledge. Thus, here we hold that the lack of instructional on the knowledge element compels reversal.
The Peoples reliance on this courts decision in People v. Vigil (2001) 94 Cal.App.4th 485 does not persuade us otherwise. There, the evidence presented at trial established without dispute that defendant was properly notified of his duty register and to inform law enforcement if he changed his address. Indeed, the evidence revealed that the defendant properly registered at one address and later properly notified authorities when he changed his residence. Thereafter, however, he failed to reregister, update his registration, or notify authorities of new changes of residence. However, it was undisputed that he changed his residence. (Id. at pp. 502-503.) Under the circumstances, this court concluded that the lack of a knowledge instruction was harmless beyond a reasonable doubt. As noted, the evidence here does not establish without dispute that defendant was aware of his duty to register an additional, temporary residence. Thus, we consider Vigil distinguishable.
IV. Disposition
Given our conclusion, we need not address defendants other claims of error.
WE CONCUR: Rushing, P.J., and Premo, J.