Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super. Ct. No. SWF024447
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., Lilia E. Garcia, and Elizabeth Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
A jury found defendant and appellant Gary Lee Watrous guilty of failing to register as a sex offender within five days of changing his residence (Pen. Code, § 290, subd. (a)(1)(A), count 1), and failing to update his registration within five working days of his birthday (Pen. Code, § 290, subd. (a)(1)(D), count 2). Defendant admitted the allegation that he had a prior strike conviction. (Pen. Code, §§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1).) The trial court sentenced him to four years on count 1 and a concurrent two years on count 2.
On appeal, defendant contends that 1) the prosecution committed multiple instances of misconduct, and 2) the court abused its discretion by denying his two motions for mistrial. We affirm.
FACTUAL BACKGROUND
Defendant was previously convicted of a felony sex offense that required him to register as a sex offender for the rest of his life. Specifically, he was required to register with the local police within five working days after moving into a new area. He was also required to annually update his registration within five working days of his birthday.
On July 23, 2007, defendant went to the Red lands Police Department and notified them that he was leaving its jurisdiction and moving to Riverside County. The new address he gave was 28732 Snead Drive (the Snead address) in Sun City, which is in Riverside County. However, upon arriving in Riverside County, defendant did not register his new address with the Perris Police Department, which had jurisdiction over Sun City.
John Arii was a Riverside County probation officer assigned to the SAFE (Sexual Assault Felony Enforcement) compliance team. His job responsibilities included regularly checking the Megan’s Law Web site to determine which individuals were sex offenders in Riverside County and conducting checks on them to see if they were in compliance with their registration requirements. On October 16, 2007, Officer Arii conducted a compliance check on defendant. He went to the Snead address, which was listed as the registered address for defendant on the Megan’s Law Web site. The probation officer did not locate defendant there, but instead found defendant’s father, who said defendant was not living there. Defendant’s father said defendant was living with his girlfriend at an unknown address, but would visit him occasionally.
Two days later, Officer Arii spoke with defendant on the telephone. Defendant told the officer he was living at the Snead address and denied living anywhere else. Defendant said his girlfriend lived at a recreational campground but alternated between two camp sites—one in Perris and one in Red lands. Defendant also said he was working as a television repairman in Red lands and gave the business name and address. Officer Arii forwarded the information from defendant to the SAFE force task team that had jurisdiction over Sun City. The SAFE team included Investigator Matthew Remmers. Investigator Remmers began a follow-up investigation on defendant.
On January 17, 2008, Investigator Remmers located defendant and interviewed him at his work address. The interview was tape recorded and played for the jury at trial. Defendant told Investigator Remmers that he knew his duties and responsibilities to register as a sex offender. Defendant said he remembered signing all of his registration forms and initialing the boxes that explained he was required to notify law enforcement when he moved into Riverside County and within five working days of his birthday. Defendant could not recall if he moved to the Snead address in April, June or July 2007. Defendant showed Investigator Remmers his sex registration receipt from the Red lands Police Department, showing that on July 23, 2007, he informed the Red lands police that he was moving to the Snead address. Defendant called it a “permanent registration receipt.” Defendant said he went to the Perris Police Department, which had jurisdiction over Sun City, and talked to Detective Luis Scull. Detective Scull told defendant he did not have to register there because “it was being handled by Red lands.” Defendant said his birthday was August 31, 1953, and that he knew he was required to register within five days of his birthday; however, he could not recall if he updated his registration in August 2007. Then he said he thought he registered by telephone.
At trial, Investigator Remmers testified that defendant notified the Redlands Police Department on July 23, 2007, that he was moving, and that defendant was required to register in the new jurisdiction to let authorities know he had relocated. Investigator Remmers testified that he never found any documentation that defendant had ever registered with the Riverside County Sheriff’s Department.
Detective Scull also testified at trial. He testified that he used to work at the Perris station of the Riverside County Sheriff’s Department and was in charge of registering sex offenders within that jurisdiction. Detective Scull said he did not recognize defendant and had never registered him as a sex offender. Detective Scull further testified that he was not allowed to register sex offenders over the telephone since there would be no way to verify the person calling. Sex offenders were required to provide some proof of identification when registering. The police would verify their driver’s license and proof of residency, and take a thumb print.
Although the reporter’s transcript of Scull’s testimony does not reflect that he was actually a detective, we will refer to him as “Detective Scull” for the sake of clarity, since that is how defendant referred to him.
Detective Peter Whittenberg testified at trial as well. He was assigned to the Perris station of the Riverside County Sheriff’s Department, and his responsibilities included registering sex offenders. He testified that he had registered defendant as a sex offender in the past. Evidence was admitted that defendant had complied with his registration requirement in September 2004. Detective Whittenberg testified that he reviewed with the registrants the various requirements written on the back of the sex registration forms to make sure they understood them. The forms stated the requirement that a registrant understand that he had a lifetime duty to register, and that he was required to go to the local law enforcement agency where he lived and update his registration annually, within five days of his birthday. Before the prosecutor started to go over the requirements listed on the registration form, defense counsel stipulated that defendant read and signed the requirements. Detective Whittenberg also testified that the law required an individual to register in person.
During closing arguments, the prosecutor argued that defendant willfully failed to register as a sex offender with the Riverside County Sheriff’s Department within five days of changing his residence and moving to the Snead address. Defendant knew he had the duty to register but chose not to. The prosecutor explained that sex offenders do not register because they do not want people to know where they are or what they are doing.
In her closing argument, defense counsel stipulated that defendant knew he had the duty to register, but agreed that the issue was whether defendant willfully failed to register. She then argued that when defendant moved to the Snead address, he received a “permanent registration” receipt in the mail from the Redlands Police Department, showing his address in Sun City. Defense counsel argued that defendant relied on that receipt to show he was in compliance with his registration requirements.
ANALYSIS
I. The Prosecutor’s Alleged Misconduct Did Not Compel Reversal of Defendant’s Convictions
Defendant contends the prosecution committed numerous instances of misconduct that necessitated reversal of his convictions. He asserts the prosecutor made improper statements/remarks during the opening statement, examination of the witnesses, and closing argument. We disagree.
A. Relevant Law
The applicable federal and state standards regarding prosecutorial misconduct are well established. “To rise to the level of deprivation of the Fourteenth Amendment to the federal Constitution, prosecutorial misconduct must infect the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Misconduct by a prosecutor that does not render a criminal trial fundamentally unfair is error under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [Citation.] Misconduct that infringes upon a defendant’s constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury’s verdict. [Citations.] A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward comment. [Citations.] In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375 (Pigage).)
B. Remarks in the Opening Statement
Defendant first contends the prosecutor committed misconduct during her opening statement. He claims the prosecutor provided the jury with “two prejudicial and irrelevant pieces of information.” The first comment about which defendant complains occurred at the beginning of her opening statement. The prosecutor told the jury that defendant had been convicted of a sex crime on January 29, 1986, which required him to register as a sex offender for the rest of his life. She then stated: “Now, on August 10th, 1992, and in between those few years, between 1986 and 1992, the defendant was sent to prison and then came back out, and during those times....” Defense counsel immediately objected on relevance grounds. The court sustained the objection and struck the statement. The prosecutor then told the jury that defendant had registered during that time period from 1986 at least 29 times, so he clearly knew he had the duty to register, but he also had violated his duty to register “on 15 prior occasions as well.” Defense counsel objected on relevance grounds again, and the court asked the parties to approach the bench for a sidebar. After some discussion, the court overruled the objection and stated that it would allow the prosecutor to say that defendant failed to register on prior occasions, but not to refer to the specific number of times defendant had failed to register.
Defendant now claims that by making the aforementioned statements, the prosecutor improperly informed the jury that defendant “ha[d] served time in prison, his sentence was short, and he had a lengthy history of allegedly failing to comply with his registration requirements.” As to the first challenged comment, the court immediately sustained the objection and struck the statement, thereby curing any prejudice to defendant.
As to the second comment referring to defendant’s past failures to register, the court properly overruled the objection. The prosecutor was required to prove that defendant knew he had a duty to register. Defendant’s past experience of complying with the requirement on some occasions and failing to comply on others was relevant on this issue. Moreover, the court minimized the prejudice by barring the prosecutor from referring to the specific number of times defendant failed to comply. In addition, prior to the prosecutor’s opening statement, the court had instructed the jury that remarks made by counsel during opening statements were not evidence.
C. Alleged Misconduct During the Examination of Witnesses
Defendant contends the prosecutor made five inflammatory points during her examination of the witnesses.
1. Questions that Allegedly Elicited Information that Defendant Had Been in Prison
The prosecutor was questioning defendant’s father and asked him when he last talked to defendant. Defendant’s father said it was on the telephone a few weeks prior. The prosecutor then asked, “And when was the last time you visited him?” Defense counsel objected immediately, and the objection was sustained. The prosecutor asked, “When was the last time that you saw your son?” Defendant’s father said, “It was in the prison.” Defense counsel objected, and the court sustained the objection and struck the statement.
At the next break, out of the presence of the jury, defense counsel asked the court not to allow the prosecutor to ask questions “that might elicit answers that [defendant] has been in prison, he visited him in jail.” The court sustained the objection and instructed the prosecutor not to ask any questions or have any witnesses give responses that defendant was in state prison.
Defense counsel also moved for a mistrial based on the prejudicial effect of the testimony that came out about defendant being in prison. The court reminded counsel, and counsel conceded, that it had sustained the objection and granted the motion to strike the evidence. The court denied the motion for mistrial.
No prejudice occurred, since the court sustained the objections and struck the evidence that defendant’s father had visited his son in prison. (See Pigage, supra, 112 Cal.App.4th at p. 1375.) Moreover, a review of the questioning by the prosecutor shows that she did not deliberately attempt to elicit information about defendant being in prison. The prosecutor did not ask defendant’s father where he had seen defendant, but only when he had last seen him.
2. References to Defendant’s Father
Defendant next claims the prosecutor “attacked” his father during questioning “out of a desire to improperly damage his credibility and any credibility he might lend to his son.”
At trial, defendant’s father testified that when the investigative officers visited him in October 2007 to ask about defendant, the father told the officers that defendant lived with him, but was at work at the time. The prosecutor asked defendant’s father if it was true that when he (the father) spoke with the probation officer, he told the officer that defendant was not living with him at the Snead address. Defendant’s father said, “No.” At the conclusion of the questioning of defendant’s father, the prosecutor asked, “You’re not real happy about being here to testify today?” Defendant’s father said, “Of course not.” The prosecutor then asked, “And you kind of think this is just a bunch of nonsense?” Defendant’s father responded, “Absolutely.” Defense counsel objected to the questioning as argumentative, and the court sustained the objection. However, after the prosecutor explained that the question was relevant to show defendant’s father’s “credibility and his attitude toward the pending proceedings,” the court reversed itself and let the answer stand.
The prosecutor then asked defendant’s father, “And, in fact, earlier in the hallway, you were basically grilling me about this case?” Defense counsel objected, and the court cautioned the prosecutor that she should not ask that question because by doing so, she was making herself a percipient witness. The prosecutor agreed and then asked defendant’s father, “Do you feel that this case is gestapoish. Isn’t that [what you] said?” Defense counsel objected again, and the court stated, “He already answered that he thought it was nonsense.” The prosecutor asked, “And you don’t feel that your son should be prosecuted; correct?” Defendant’s father said, “Right.” No objection was made. The prosecutor then asked, “And you don’t want to see anything bad happen to him, do you?” Defendant’s father said, “No, of course not.” The prosecutor asked, “Is that why you’re changing your story?” Defense counsel objected, and the court sustained the objection and struck the question.
Defendant now argues that the prosecutor was attacking defendant’s father. However, the prosecution simply wanted to show the jury defendant’s father’s attitude toward the case since his testimony conflicted with Officer Arii’s testimony. Officer Arii earlier testified that defendant’s father had told him defendant was not living with him at the Snead address. Defendant’s father testified that defendant was living with him. Moreover, the court struck the prosecutor’s question as to whether defendant’s father was changing his story at trial because he did not want anything bad to happen to his son. Thus, the court cured any harm. (Pigage, supra, 112 Cal.App.4th at p. 1375.)
3. Prior Registration Violations
Defendant next complains about questions concerning the number of defendant’s prior registration violations. The prosecutor questioned Delores Hast, a supervisor for the sex offender tracking program within the Department of Justice. Hast testified that information about sex offenders was kept in a document known as the Violent Criminal Information Network (VCIN) packet. Hast testified concerning a certified copy of the VCIN packet for defendant that was submitted into evidence. The prosecutor questioned Hast as follows:
“Q: The TRN that is indicated for violation, does that stand for transient violation?
“A: Yes.
“Q: And throughout this form there are a number of times when the defendant is in violation of registering as a transient; correct?
“A. 15.”
Defense counsel objected immediately and moved to strike. The court sustained the motion and struck the answer. The prosecutor then asked Hast whether there were a number of times, without specifying the number, that defendant failed to register as a transient. Hast said, “Correct.” The prosecutor proceeded to ask Hast if defendant had failed to register for his annual update on certain dates, and Hast said, “Correct.” Defense counsel objected. The court sustained the objection, admonished the jury to disregard the last question and answer, and also struck the answer from the record.
The next morning, defense counsel moved for a mistrial, arguing that the jury had been tainted with information on the number of defendant’s prior violations. The court agreed that the information regarding the past violations was irrelevant but declined to grant a mistrial because it did not think the jury had been prejudiced.
The court’s corrective actions in sustaining the objection, admonishing the jury, and striking the evidence from the record cured any prejudice. (See Pigage, supra, 112 Cal.App.4th at p. 1375.) Moreover, the prosecutor was attempting to elicit evidence that on prior occasions defendant had or had not complied with his registration requirements, in order to show that defendant had knowledge of the registration requirements.
4. References to VCIN
At trial, defense counsel objected to the prosecutor’s continued use of the phrase “Violent Criminal Information Network,” contending that it was beginning to prejudice the jury. The court was in complete agreement and advised the prosecutor to refrain from using that phrase unless it was essential in the questioning of future witnesses. The prosecutor agreed, and no further references were made to this phrase. On appeal, defendant argues there was no proper reason for the prosecutor to use the words “violent criminal” in relation to his documented history.
The first few references occurred when the prosecutor asked Hast to explain the database used for tracking sex offenders. Hast explained that the information was kept in a database known as the “Crime Information Network.” The prosecutor asked whether there was a document created that was known as the Violent Criminal Information Network packet. Hast said, “Yes.” The prosecutor then asked Hast to verify whether exhibit 1 was a certified copy of the Violent Criminal Information Network packet for defendant, and Hast said, “Yes.”
The next cited reference occurred when the prosecutor asked Investigator Remmers whether he found “any reference or registration indicated within the defendant’s VCIN packet, that he had ever registered as living or staying at the RV parks in either Perris or the Beaumont area.”
The last cited reference occurred when the prosecutor asked Investigator Remmers about some contact numbers listed in defendant’s VCIN packet. She said, “You were asked on the VCIN document, that being the Violent Criminal Information Network packet, those contact numbers....”
We conclude that the cited references did not render the trial unfair or involve the use of deceptive or reprehensible methods. (Pigage, supra, 112 Cal.App.4th at p. 1375.) Moreover, we note that the court sustained the objection to using the subject phrase and advised the prosecutor appropriately and adequately. Thus, the court cured any harm. (Ibid.)
5. Prejudicial Statements Made During the Questioning of Witnesses
Defendant contends the prosecutor repeatedly asked her own witnesses questions that contained allegedly improper and inflammatory information. We disagree.
The first cited instance occurred after the prosecutor had played for the jury the tape of defendant’s interview with Investigator Remmers. After the tape was played, the prosecutor reviewed defendant’s statements with Investigator Remmers. She asked him the following: “And when you were talking with the defendant, you were explaining some different things that he had done wrong, that show that he was out of compliance with... his duty to register; correct?” Investigator Remmers said, “Yes.” Contrary to defendant’s claim, this question did not contain any improper information, since the prosecutor was simply reviewing the information that had just been played for the jurors.
Defendant next complains that the prosecutor committed misconduct by asking Investigator Remmers his opinion about whether, based on his experience, it was common for sex registrants to lie about where they actually lived. The court sustained a defense objection, which, we conclude, cured any prejudice. (See Pigage, supra, 112 Cal.App.4th at p. 1375.)
The next questions about which defendant complains concerned whether defendant’s story changed throughout the interview regarding where he was living after he told the Redlands Police Department he was moving. Defense counsel objected to each of the questions, and the court either sustained the objections or advised the prosecutor that she had not used the proper format for the question. The court’s actions were sufficient to cure any prejudice. Moreover, any information contained in the questions was not inflammatory since the questions reflected defendant’s own statements, which were taped and played for the jury. For example, at first defendant told Investigator Remmers that he only slept at the Snead address “once in a while” or once or twice per week. He later told Investigator Remmers that he slept there three or four times per week. When Investigator Remmers first asked defendant where he slept when he was not at the Snead address, defendant said he slept in his truck, which he parked at his storage unit. Defendant subsequently said he usually parked and slept in front of the house.
D. Alleged Misconduct During Closing Argument
Defendant argues the prosecutor used her closing argument to prejudice the jury against defendant. We disagree.
The first cited comment concerned the prosecutor’s statement that the sex offender registration laws do not exist to punish sex registrants, but rather, “They are in place to protect and keep children and women safe from these sex offenders. That’s why we have the rules on the books.” After a sidebar conference, the court overruled defense counsel’s objection to the prosecutor’s statements, stating that it was a “reasonable inference as it relates to the legislative intent.” We agree. There was nothing prejudicial about this statement.
The next cited comment was the prosecutor’s statement in her rebuttal argument urging the jury not to be duped into believing defendant’s claim that he could register by telephone with the police department. The prosecutor stated: “Is that the kind of message you want to send, come into our county, don’t register, put everybody in jeopardy, in harm’s way of what you’re up to? Is that [the] message you want to send? I hope not.” This claim is forfeited because defendant failed to object at trial. (People v. Hinton (2006) 37 Cal.4th 839, 903.) In any event, we conclude there was nothing improper about this argument, since the prosecutor went on to remind the jury that certain witnesses testified as to why the police did not permit registration over the telephone.
The third comment about which defendant complains occurred during the prosecutor’s rebuttal argument, when she noted defendant’s omission to call his girlfriend as a witness. The prosecutor said she (the prosecutor) was not the only person who could subpoena witnesses. Defense counsel objected that the statement was improper, and the court sustained the objection. The prosecutor then said: “If Carol the girlfriend had something important to say, she could have been brought in here.” Defense counsel objected again, arguing that she did not have the burden of proof. The court sustained the objection. The prosecutor followed up with a clarifying statement: “The defense doesn’t have the burden of proof, I have the burden of proof, but they also have the ability to bring witnesses in if they want to— [¶]... [¶]... and they chose not to.” Defense counsel objected, but this time, the court overruled the objection. We conclude there was nothing improper about the prosecutor’s statements. “[P]rosecutorial comment upon a defendant’s failure ‘to introduce material evidence or to call logical witnesses’ is not improper. [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 263.) Furthermore, the prosecutor promptly clarified that it was not suggesting that defendant had the burden of proof.
Finally, defendant contends that a statement made by the prosecutor during her rebuttal argument constituted misconduct. The statement is noted in italics as follows: “Then [defense counsel] starts talking about clear and convincing evidence, which is the standard that is used when the Court decides whether or not to take away your children. What does that have to do with this case? [¶] Nothing. We’re not here to take away people’s children. We are here to protect them.” (Italics added.) Defense counsel objected, and the court overruled the objection. When viewed in context, it is clear there was nothing improper about the statement defendant complains about. The prosecutor was simply addressing the different standards of proof that defense counsel had raised in her argument.
E. No Reversal Is Required
Ultimately, any misconduct here does not require reversal of defendant’s convictions since he was not prejudiced. As defense counsel and the People agreed, the only element at issue in counts 1 and 2 was whether defendant willfully failed to register. The evidence that defendant willfully failed to register was strong. Defendant told Investigator Remmers that he understood his duties and responsibilities to register as a sex offender. The evidence contained a copy of the form defendant initialed on July 23, 2007, the date on which he claims the Redlands police misled him by issuing him a permanent registration receipt. The form shows that defendant initialed the requirements that explicitly stated he had to register in person with the law enforcement agency having jurisdiction over his residence when he moved, and that he had to register annually within five days of his birthday. Nonetheless, after defendant moved to Riverside County on or about July 23, 2007, he failed to register his new address (the Snead address) with the Perris Police Department. Although Redlands police did issue defendant a permanent registration receipt, the fact remains that defendant had registered multiple times in the past and understood that his responsibility as a sex offender was a lifetime requirement. Furthermore, defendant argued that he was misled into believing he never had to register again after receiving the permanent registration receipt, yet he also asserted that he went to the Perris police station to register upon moving. Defendant claimed that Detective Scull told him he did not have to register there because “it was being handled by Redlands.” In contrast, Detective Scull testified at trial that he did not recognize defendant and had never registered him as a sex offender. Defendant also claimed he registered by telephone. However, Detective Scull testified that he was not allowed to register sex offenders over the telephone because there would be no way to verify the person calling. Detective Whittenberg similarly testified that the law required an individual to register in person.
Thus, defendant’s own claims were at odds and were also contradicted by the evidence. Ultimately, it was up to the trier of fact to weigh the evidence and determine what happened. The jury apparently believed the evidence demonstrated that defendant’s failure to register was willful.
In view of the evidence, the instances of prosecutorial misconduct raised by defendant could have little effect on the issue of defendant’s willfulness or the jury’s findings of guilt. Furthermore, the jurors deliberated for less than four hours before finding defendant guilty on both counts. It is not reasonably probable that a result more favorable to defendant would have been reached absent the misconduct. (People v. Arias (1996) 13 Cal.4th 92, 161.)
II. The Court Properly Denied the Motions for Mistrial
Defendant argues the court abused its discretion by denying the two motions for mistrial. We disagree.
A. Standard of Review
“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]” (People v. Haskett (1982) 30 Cal.3d 841, 854.) “In reviewing rulings on such motions, we apply the deferential abuse-of-discretion standard. [Citation.]” (People v. McLain (1988) 46 Cal.3d 97, 113.)
B. There Was No Abuse of Discretion
Defense counsel moved for the first mistrial based on the prejudicial effect of defendant’s father’s testimony about defendant being in prison. The court denied the motion for mistrial after reminding defense counsel that it had just sustained an objection and struck the evidence of defendant’s father’s testimony that he had visited his son in prison.
Defense counsel moved for the second mistrial on the grounds that the jury had been tainted with information on the number of defendant’s prior registration violations. The court agreed that the information regarding the past violations was irrelevant but declined to grant a mistrial because it did not think the jury had been prejudiced. The court noted that it had sustained defense counsel’s objections to the testimony that defendant previously violated his registration requirement, and it struck the related answers. We note the court also admonished the jury to disregard the prosecutor’s question as to whether defendant was in violation of his annual update on three specified dates, and the witness’s answer to the question.
Under the deferential abuse of discretion standard, we find no error. The cited incidents were not incurably prejudicial, and the court’s actions in sustaining the objections, striking the evidence, and admonishing the jurors were sufficient to prevent any harm.
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER J., RICHLI J.