Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06170
CANTIL-SAKAUYE , J.
A jury convicted defendant Kenneth Lee Adams of failing to register as a sex offender (Pen. Code, § 290). Defendant admitted three prior prison term allegations, and the trial court sentenced him to six years in prison.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant contends: 1) there is insufficient evidence to support his conviction for failing to register; 2) the trial court improperly instructed the jury on the meaning of residence and the transient registration requirements under section 290; 3) the jury was improperly instructed on the knowledge element of section 290; 4) the trial court erred in giving CALJIC No. 3.30 to the jury; 5) section 290 is void for vagueness as applied to defendant; and 6) his upper term sentence violates the principles of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). We reject the contentions and affirm.
BACKGROUND
On December 15, 2005, defendant registered as a sex offender with the Yuba City Police Department. Defendant’s residence was listed as the house of his friend, J.D., with whom he lived. The registration form which defendant signed contained a list of registration requirements, and defendant initialed each of them.
Defendant met with his parole officer, Larry Allen Dunn, at J.D.’s house on December 15, 2005. Officer Dunn told defendant he had to register within five working days of changing residences. Defendant said he would comply and told Dunn he was familiar with the registration requirements. Dunn did not see defendant again until his arrest.
Defendant, who would regularly come in by dinner time or 9:00 p.m., had his own room with its own key, and could come and go without J.D.’s knowledge or consent. He started staying with J.D. in October of 2005, but after December 29, 2005, J.D. did not see defendant until he was arrested and in jail. Defendant did deposit dirty clothes in his room after he had stopped sleeping there. He also left personal property in the room, including Christmas gifts and his clothes.
Dunn made unannounced visits at J.D.’s house on January 6, 2006 and January 9, 2006. J.D. told Dunn defendant was not there, she had not seen him, and did not know how to contact him. Dunn contacted defendant’s acquaintances, all of whom replied defendant had either dropped by or spent the night, but no one knew where he was or how to contact him. Dunn then obtained an arrest warrant for defendant as a parole violator.
On January 11, 2006, Yuba City Police Officer Vish Sharma responded to a prowler call at 3:00 a.m. and found defendant sleeping in the backseat of a car by a house. Defendant did not come out until Officer Sharma made several loud demands for defendant to exit the car. He was then arrested and booked on the parole hold.
Dunn gave defendant his Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] warnings and interviewed him. Defendant said he had been “staying on the river” and “just bouncing around at various friend’s [sic] in Yuba City and Sutter County.” When told that J.D. had not seen him since December 29, defendant said “Yeah, the 29th or the 30th.”
Defendant remembered signing the registration form. He admitted having registered numerous times in the past, but did not know how many days he had to register because he did not pay attention to the requirements. Defendant admitted initialing the requirements in the registration form and acknowledged he was probably verbally informed of them as well.
Dunn asked defendant if he knew he had to re-register when he became a transient and why he had not re-registered. Defendant answered that he failed to register because he had “a problem with some threats from some subjects he wouldn’t identify or for reasons that he wouldn’t identify . . . .”
A transitional reentry home called Re-Entry was next door to J.D.’s house. Around Christmas, John Quintana, the manager of the home, was asked by J.D. if he had seen defendant. Quintana saw defendant walk towards the front of J.D.’s house about two days before their conversation. He did not know the exact date of the conversation or when he saw defendant walking towards J.D.’s house.
According to defendant’s testimony that while he read and understood the registration form, he thought he had violated his parole rather than the registration law. He came back to J.D.’s home about four times after leaving it in December. After December, defendant was visiting friends, never staying more than one night in a location. He thought he was acting consistently with his commitment to register as a sex offender. Defendant slept at J.D.’s house between 8:00 a.m. and 1:00 p.m. on the four days he went back there.
Defendant admitted to two prior convictions for second degree burglary, a prior conviction for possession of narcotics with the intent to sell, and three prior convictions for failing to register as a sex offender. His last conviction under Penal Code section 290 was for failing to follow the transient registration requirements.
DISCUSSION
I.
Defendant contends there is insufficient evidence to support his conviction for failing to register as a sex offender. We reject the claim, finding substantial evidence to support a conviction on a transient registration theory.
In reviewing a challenge to sufficiency of the evidence, we examine the record in the light most favorable to the judgment to see if it contains reasonable, solid evidence (contradicted or uncontradicted) from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Penal Code section 290 establishes a lifetime registration requirement for those convicted of certain sex offenses. A person subject to registration must register within five working days of changing address (§ 290, subd. (a)(1)(A)), within five working days of becoming a transient (§ 290, subd. (a)(1)(C)(ii)), and, if the person has more than one regular residence, must register at each residence (§ 290, subd. (a)(1)(B)). Defendant was convicted of willfully failing to comply with the registration requirements. (§ 290, subd. (g)(2).) An additional element of the willful violation of the duty to register is that defendant knew of his duty to register. (People v. Garcia (2001) 25 Cal.4th 744, 752 (Garcia).)
The prosecution argued three theories of liability: defendant failed to re-register after changing his address, defendant failed to re-register after becoming a transient, and he failed to re-register after adding an additional address. The jury was instructed on all three theories and told that any of these omissions violated Penal Code section 290. As there is substantial evidence to support the transient theory of liability, we need not address the others.
Defendant had a prior felony conviction for failing to register as a transient along with two misdemeanor convictions for failing to register. He had registered many times before, and told Officer Dunn that he was familiar with the registration requirements. Defendant acknowledged reading, understanding, and signing the registration form, as well as initialing the provision listing various requirements of registration.
The evidence also supports a finding that defendant was a transient and did not register within five working days of becoming one. For the purpose of Penal Code section 290, a transient is defined as “a person who has no residence,” and residence is defined as “one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.” (§ 290, subd. (a)(1)(C)(vii).)
Defendant admitted that he never saw J.D. after December 29 or December 30, 2005. After that, he spent each night at a different place, including, by his own admission, at the river. He was finally found by police at 3:00 a.m., sleeping in the backseat of a car by someone’s house. By the time he was arrested, defendant fit the classic profile of a transient.
Our conclusion does not change simply because defendant kept his belongings at J.D.’s house. Defendant had previously stored personal belongings at J.D.’s while he resided elsewhere. By leaving dirty clothes at J.D.’s while sleeping elsewhere, defendant was using his former residence as a storage facility while living as a transient without informing the authorities as required.
Defendant may also have been using J.D.’s house as a laundry, since J.D. did defendant’s laundry.
Finally, defendant was arrested on January 11, 2006.
Five working days after December 29, 2005, is January 6, 2006, while five working days after December 30, 2005, is January 9, 2006. Since defendant did not register within five working days of becoming a transient, we find defendant’s conviction to be supported by substantial evidence.
II.
The trial court gave the following instruction to the jury concerning the definition of residence: “‘Residence’ means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters and recreational and other vehicles.”
Defendant contends the phrase “regardless of the number of days or nights spent there” misstates the law as Penal Code section 290, subdivision (a)(1)(C)(vii), defines residence as “‘a place in which a person is living or temporarily staying for more than five days.’” His argument is without merit because defendant is relying on an obsolete version of section 290.
The provision which defendant quotes was amended in 2005 by AB 439, which eliminated the five-day requirement for a residence, replacing it with the statutory language contained in the instruction. (Stats. 2005, ch. 704, § 1.) This bill, which was signed by the Governor on October 7, 2005, became law on January 1, 2006. In response, defendant argues applying the new definition of residence to him violates the state and federal provisions against ex post facto legislation.
A person violates the sex offender registration law on the date when the obligation to register arises and also, each and every day after that the defendant fails to satisfy the registration requirement. (Wright v. Superior Court (1997) 15 Cal.4th 521, 528.) Defendant was convicted of failing to register as a sex offender within five working days of leaving his original residence. The evidence establishes that he left J.D.’s residence on December 29 or 30, 2005, meaning that he did not violate section 290 until January 6 or January 9, 2006. Since defendant did not violate the registration law until after the effective date of the amendment, there was no ex post facto violation in applying the new definition of residence to defendant.
III.
Defendant contends the trial court incorrectly instructed the jury on the knowledge element of section 290.
The trial court twice mentioned the knowledge element in its instruction on section 290, instructing the jury as follows: “Any person who is required to register who has a prior conviction for the offense of failing to register under this section and who subsequently and willfully violates any requirement of this section is guilty of a violation of this section. [¶] The person has actual knowledge of the specific requirement to register.” The instructions also identified knowledge as an element of the crime of failing to register as a sex offender:
“In order to prove this crime, each of the following elements must be proved:
“1. A person is required to register pursuant to Penal Code section 290;
“2. A person has actual knowledge of the specific requirement to register;
“3. A person has a previous conviction for violating [any requirement of] Penal Code section 290; and
“4. The person willfully violated any requirement of Penal Code section 290.
“a. The person failed to register within five working days of coming into, or changing his residence or location within any city. Or
“b. The person failed to register all addresses where he regularly resides as required. Or
“c. The person failed to register as a transient after becoming a transient as required.”
Defendant claims the trial court should have instructed the jury that in order to convict defendant, it must find that he knew he had a duty to register as a transient or if he established a second residence. In support of his argument, defendant relies on People v. Garcia, supra, 25 Cal.4th 744 and People v. Edgar (2002) 104 Cal.App.4th 210 (Edgar). Neither case supports defendant’s contention.
In Garcia, our Supreme Court held that for an individual to “willfully” violate section 290, the person must have “actual knowledge” of the duty to register that he is charged with having violated. (Garcia, supra, 25 Cal.4th at p. 752.) As the court noted, a defendant is liable under Penal Code section 290 only if he or she willfully fails to register. (Ibid.) “Willfully” implies purposeful or willing failure to perform the required duty. (Ibid.) “Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed.” (Ibid.) Therefore, “a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement.” (Ibid.)
The Garcia court concluded “the [trial] court’s instructions on ‘willfulness’ should have required 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.” (Garcia, supra, 25 Cal.4th at p. 754.) This error was compounded in Garcia by the improper use of CALJIC No. 4.36, the “ignorance of the law is no excuse” instruction. (Ibid.)
The trial court did not commit the errors identified in Garcia. CALJIC No. 4.36 was not given, and when read in context, the instructions appropriately informed the jury that defendant had to know of the requirement to register if he became a transient or had a new residence.
The trial court instructed the jury on the four elements of the charged offense. Knowledge of the registration requirement was the second element which stated that, “a person has actual knowledge of the specific requirement to register.” The court spelled out when registration was required in the fourth element, identifying under what conditions defendant must register as a transient or when his residence changes. Although the fourth element contains no reference to knowledge, when read in the context of the entire instruction, the jury was properly instructed that it could only convict if it found that defendant knew of his specific requirement to register if he became a transient or changed addresses.
Edgar, supra, 104 Cal.App.4th 210, like Garcia, involved the lack of any instruction on the knowledge element of section 290, coupled with an instruction on the definition of willfulness found in CALJIC No. 1.20. (Edgar, supra, at p. 219.) The situation in Edgar is somewhat closer to this case because, as in Edgar, the jury was given the general intent instruction of CALJIC No. 3.30. (Edgar, supra, at p. 219.)
Although it is more similar to this case than Garcia’s, Edgar still does not govern. The error found in Edgar was that the instructions given were in error for failing to clearly state that a conviction required actual knowledge of the duty to register. (Edgar, supra, 104 Cal.App.4th at p. 219.) Here, the trial court clearly communicated to the jury that it must find that defendant knew of his duty to register. Accordingly, we reject defendant’s claim.
IV.
Defendant contends that the trial court’s instruction on general criminal intent, CALJIC No. 3.30, erred by negating the element of willfulness. We reject the contention because any error was harmless beyond a reasonable doubt.
In People v. Barker (2004) 34 Cal.4th 345 (Barker), where defendant asserted he forgot to register, the jury was not instructed that willful failure to register requires actual knowledge of the duty to register, which the court found to be error. (Id. at p. 359.) The Supreme Court further concluded that giving CALJIC No. 3.30 was also error because it might lead the jury to conclude “that a defendant may be guilty of violating section 290 even if unaware of his or her obligation to register.” (Id. at p. 361.)
We do not need to determine whether the rule of Barker applies when the jury has been specifically instructed on the knowledge element because any error was harmless. In Barker, the Supreme Court concluded the error was harmless beyond a reasonable doubt because, “[t]he record amply reflects defendant was aware of his registration obligation, and his counsel did not claim the contrary in trying the case to the jury. [Citation.]” (Barker, supra, 34 Cal.4th at p. 361.) As we have already discussed, there is ample evidence that defendant knew about his duty to register within five days of his no longer residing at J.D.’s house.
This case differs from Barker because defendant, unlike the defendant in Barker, argued that he did not know or believe he had a duty to register since his residence remained unchanged and he was not transient. However, any prejudice to the defense is negated by the specific instruction on the knowledge element, a factor not present in Barker.
In light of the compelling evidence of knowledge, and the trial court’s instructions on that element, any error in giving CALJIC No. 3.30 was harmless beyond a reasonable doubt.
V.
Defendant contends that section 290 is unconstitutionally vague as applied to him. He argues the statute does not describe with sufficient specificity “what events transition a person with a residential address that is accessible as a residence, into a ‘transient’ subject to registration.”
A law is void for vagueness if it “fails to provide adequate notice to those who must observe its strictures” and “‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’” (People ex rel. Gallo v. Acuna (1997) 14Cal.4th 1090, 1116, quoting Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109 [33 L.Ed.2d 222, 227-228].) “[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand” (United States v. Mazurie (1975) 419 U.S. 544, 550 [42 L.Ed.2d 706, 713]) and if the at-issue statute applies to a criminal defendant’s conduct, the defendant may not challenge it on grounds of vagueness. (Parker v. Levy (1974) 417 U.S. 733, 756 [41 L.Ed.2d 439, 457-458].)
In People v. North (2003) 112 Cal.App.4th 621 (North), the defendant successfully challenged the registration requirement as applied to him. (Id. at p. 624.) The Court of Appeal reversed North’s convictions because the term “location” failed to provide sufficient specificity as to when a transient sex offender was required to register in a particular jurisdiction. (Id. at pp. 634, 636.)
The Court of Appeal also held that “the basic registration requirements for transient sex offenders--that they register in each jurisdiction in which they are regularly ‘located’ and update their registration every 60 days (§ 290, subd. (a)(1)(A), (B), and (C))--may be reasonably and practically understood by offenders and law enforcement as mandating registration in any jurisdiction where the offender is present on five consecutive working days. Those provisions remain valid.” (North, supra, 112 Cal.App.4th at p. 624.)
Defendant’s vagueness challenge concerns the definitions of “transient” and “residence” in subdivision (a)(1)(C)(vii) of section 290. The Court of Appeal in North concluded that the provisions governing transients in subdivision (a)(1)(C) were not unconstitutionally vague, and we see no reason to depart from that conclusion.
The provision states that, “‘transient’ means a person who has no residence. ‘Residence’ means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.” (§ 290, subd. (a)(1)(C)(vii).) By no longer sleeping at J.D.’s residence, defendant no longer “regularly resided” there.
The statute gave defendant adequate notice that he had to register, thus fulfilling the requirements of due process. Accordingly, we reject defendant’s vagueness challenge to section 290.
VI.
We also reject defendant’s claim that imposition of the upper term violates the rule of Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435] and Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403].
In Apprendi, the Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In Cunningham v. California (2007) ___ U.S. ___ [166 L.Ed.2d 856] (Cunningham), the Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law (DSL) “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [2007 WL 505809].)
Here, however, the trial court cited as a basis for imposing the upper term defendant’s prior convictions, he was on parole when the crime occurred, and he has “violated parole and probation on numerous occasions.”
The imposition of the upper term based on these facts did not violate the rule of Apprendi, Blakely, and Cunningham because that rule does not apply to an aggravated sentence based on a defendant’s prior convictions. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) As these factors all relate to defendant’s prior criminal adjudications, his upper term sentence did not violate the rule of Blakely and Apprendi.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., RAYE , J.