Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BF125542A of Kern County. John R. Brownlee, Judge.
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On May 1, 2009, the Kern County District Attorney filed an amended information in superior court charging appellant Jaime Aguero with one count of failing to register as a sexual offender after being released from incarceration (Pen. Code, § 290.015) and five counts of failing to register as a sexual offender within five days of his birthday (§ 290.012, subd. (a)). The district attorney specially alleged appellant had sustained a prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) as to each count. On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
On May 21, 2009, appellant moved to dismiss the information (§ 1381) on grounds of a violation of due process and the right to a speedy trial. On July 2, 2009, respondent filed a written response to appellant’s motion to dismiss.
On July 17, 2009, the court denied appellant’s motion to dismiss.
On July 22, 2009, appellant rejected a plea bargain and the court set the matter for jury trial.
As to count 1, the appellant refused an offer of “32 months at 80%.” As to counts 2 through 6, the appellant refused an offer of “16 months with a Romero motion at 50%.”
On August 3, 2009, the court bifurcated trial of the special allegations and jury trial commenced.
On August 4, 2009, the court dismissed count 1 on motion of the district attorney (§ 1385).
On August 5, 2009, the jury found appellant guilty of counts 2 through 6. Appellant waived a jury trial of the special allegations and the court found the allegations related to counts 2 through 6 to be true.
On September 2, 2009, the court denied appellant probation and sentenced him to a total term of nine years, four months in state prison. The court imposed the doubled middle term of four years on count 2 and consecutive terms of one year, four months on counts 3 through 6. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)) and awarded 86 days of custody credits.
On September 2, 2009, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Appellant was adjudicated a sexual offender on October 17, 1985, and was required to register in Kern County, California. He first registered with Kern County on February 24, 1998. At that time, appellant signed and initialed a form that required him to register for the rest of his life as well as annually within five days of his birthday, October 1. Appellant registered as a sexual offender in 1999, 2000, and 2001. Although there was no record to show he registered in 2002, there was evidence to show he registered in 2003.
Appellant registered on August 4, 2004. At that time, he initialed the portion of the registration form that reiterated his lifetime registration requirement and his duty to register within five working days of his birthday. Stephanie Kennedy was the supervisor of the sex offender registration unit in the Kern County Sheriff’s Department. At trial, Kennedy displayed and discussed the “Form 8102” that appellant completed on August 9, 2004. The form showed that appellant was born on October 1, 1969, and resided at 3809 Granada Avenue. Appellant initialed the form to show he understood a requirement for reregistration within five days of his birthday and that this was a lifetime requirement. Kennedy testified that appellant did not reregister again until December 2008. Kennedy denied telling appellant that he did not have to register.
Several law enforcement officers testified about appellant’s registration history. Deputy Sheriff Mario Magana was acting as a patrol deputy for the Lamont Substation when he encountered and arrested appellant in June 2007. At that time, appellant gave Magana his mother’s maiden name, Valverde, as his last name instead of giving his actual surname, Aguero. Once Deputy Magana determined appellant’s actual last name, he asked appellant about his duty to register. Appellant told Magana he knew he was supposed to register. Appellant also told the deputy he had been tricked into pleading to the offense underlying his duty to register. Appellant was ultimately not charged with a registration offense in 2007.
Bakersfield Police Detective Damon Youngblood testified he and other officers conducted a “sweep” on November 5, 2008, to find people in violation of sex offender registration laws. Detective Youngblood and other officers arrested appellant at the Granada Avenue address. At the time of arrest, appellant acknowledged to Youngblood that he had not registered for the preceding four years and was aware of his duty to register.
Defense
Appellant testified on his own behalf. Appellant said he had resided in his family home on Granada Avenue since 2003. Appellant first registered in 1998 after he was released from prison on an unrelated offense. In 2004, appellant went to reregister within five days of his birthday. Appellant said he told a woman behind the counter of the purpose for his visit. The woman was not Stephanie Kennedy. She went to the back of the office, returned five minutes later, and said appellant no longer had to register. As a result, appellant never registered as a sex offender after that date. Appellant said he had five or six contacts with law enforcement officials between 2004 and 2008 but was never charged with a registration offense, with the exception of the arrest in 2007.
Appellant further testified he was 15 years old in 1985 when he sustained a conviction for annoying children (§ 647, subd. (a)). Appellant said he pleaded no contest because a deputy district attorney told him that it was the same as pleading not guilty. Appellant denied committing the charged offense and said he served five years of an eight-year term of confinement at the California Youth Authority (CYA).
Appellant was discharged from CYA in 1991. Between 1992 and 1998, appellant engaged in a series of parole and probation violations and sustained several new criminal convictions, including second degree robbery with a firearm. In 1998, he was released after serving time for a parole violation and learned of his duty to register as a sex offender. Appellant registered with Kern County authorities in 1998. Appellant testified he was able to read at the time he learned of the registration requirement.
Appellant denied telling Officer Magana that he knew he had to register in 2007. Appellant did say he failed to give Deputy Magana his true name because he was afraid he would be sent to jail on an outstanding arrest warrant. With respect to his statements to Officer Youngblood, appellant said he told the officer he “used to” have to register. Appellant also testified he told Officer Youngblood about the clerk who said he no longer had a duty to register. Stephanie Kennedy testified that a violation of section 647, subdivision (a) was appellant’s original charge. She said the offense carries a lifetime registration requirement but the offense is one that can be expunged after a 10-year period.
DISCUSSION
I. THE STATUTE OF LIMITATIONS AS TO COUNTS 2 AND 3 HAD NOT EXPIRED AT THE TIME OF COMMENCEMENT OF THE PROSECUTION
Appellant contends the convictions in counts 2 and 3 should be reversed because the prosecution was commenced after the three-year statute of limitations had lapsed.
A. The Charging Document and Subsequent Pleadings
On March 12, 2009, the Kern County District Attorney filed an information in superior court charging appellant in relevant part:
“COUNT: 001, ON OR ABOUT NOVEMBER 5, 2008, JAIME AGUERO, WHO WAS A PERSON SUBJECT TO THE REGISTRATION REQUIREMENTS OF PENAL CODE SECTIONS 290 TO 290.23, AS A SEX OFFENDER, DID WILLFULLY AND UNLAWFULLY FAIL TO REGISTER, OR REREGISTER UPON RELEASE FROM INCARCERATION, PLACEMENT, COMMITMENT OR RELEASE ON PROBATION, IN VIOLATION OF PENAL CODE SECTION 290.015, A FELONY PURSUANT TO PENAL CODE SECTION 290.018(B).
“PRIOR
“IT IS FURTHER ALLEGED AS TO JAIME AGUERO, THAT SAID PERSON WAS ON OR ABOUT OCTOBER 17, 1985 IN THE SUPERIOR COURT, COUNTY OF KERN, CASE NUMBER #Y46575, STATE OF CALIFORNIA, CONVICTED OF A PRIOR FELONY OFFENSE, TO WIT: PENAL CODE SECTION 647A, WITHIN THE MEANING OF SUBDIVISIONS (C) THROUGH (J) OF PENAL CODE SECITONS 667 AND SUBDIVISIONS (A) THROUGH (E) OF PENAL CODE SECTION 1170.12.”
“COUNT: 002, ON OR ABOUT NOVEMBER 5, 2008, JAIME AGUERO, WHO IS A PERSON SUBJECT TO THE REGISTRATION OR REREGISTERED [SIC] REQUIREMENTS OF PENAL CODE SECTION 290 TO 290.023, AS A SEX OFFENDER, DID WILLFULLY AND UNLAWFULLY FAIL TO REGISTER AS A SEX OFFENDER WITHIN FIVE WORKING DAYS AFTER HIS/HER BIRTHDAY ON AN ANNUAL BASIS, IN VIOLATION OF PENAL CODE SECTION 290.012(A), A MISDEMEANOR PURSUANT TO PENAL CODE SECTION 290.018(A).
“PRIOR
“IT IS FURTHER ALLEGED AS TO JAIME AGUERO, THAT SAID PERSON WAS ON OR ABOUT OCTOBER 17, 1985 IN THE SUPERIOR COURT, COUNTY OF KERN, CASE NUMBER #Y46575, STATE OF CALIFORNIA, CONVICTED OF A PRIOR FELONY OFFENSE, TO WIT: PENAL CODE SECTION 647A, WITHIN THE MEANING OF SUBDIVISIONS (C) THROUGH (J) OF PENAL CODE SECITONS 667 AND SUBDIVISIONS (A) THROUGH (E) OF PENAL CODE SECTION 1170.12.”
On May 1, 2009, the Kern County District Attorney filed a felony amended information in superior court charging appellant in relevant part:
“COUNT: 001, ON OR ABOUT AND BETWEEN JUNE 21, 2007 AND DECEMBER 21, 2007, JAIME AGUERO, WHO WAS A PERSON SUBJECT TO THE REGISTRATION REQUIREMENTS OF PENAL CODE SECTIONS 290 TO 290.023, AS A SEX OFFENDER, DID WILLFULLY AND UNLAWFULLY FAIL TO REGISTER, OR REREGISTER UPON RELEASE FROM INCARCERATION, PLACEMENT, COMMITMENT OR RELEASE ON PROBATION, IN VIOLATION OF PENAL CODE SECTION 290.015, A FELONY PURSUANT TO PENAL CODE SECTION 290.018(B). [¶]... [¶]
“COUNT: 002, ON OR ABOUT OCTOBER 1, 2004, JAIME AGUERO, WHO IS A PERSON SUBJECT TO THE REGISTRATION OR REREGISTERED [SIC] REQUIREMENTS OF PENAL CODE SECTION 290 TO 290.023, AS A SEX OFFENDER, DID WILLFULLY AND UNLAWFULLY FAIL TO REGISTER AS A SEX OFFENDER WITHIN FIVE WORKING DAYS AFTER HIS/HER BIRTHDAY ON AN ANNUAL BASIS, IN VIOLATION OF PENAL CODE SECTION 290.012(A), A MISDEMEANOR PURSUANT TO PENAL CODE SECTION 290.018(B). [¶]…[¶]
“COUNT: 003, ON OR ABOUT OCTOBER 1, 2005, JAIME AGUERO, WHO IS A PERSON SUBJECT TO THE REGISTRATION OR REREGISTERED [SIC] REQUIREMENTS OF PENAL CODE SECTION 290 TO 290.023, AS A SEX OFFENDER, DID WILLFULLY AND UNLAWFULLY FAIL TO REGISTER AS A SEX OFFENDER WITHIN FIVE WORKING DAYS AFTER HIS/HER BIRTHDAY ON AN ANNUAL BASIS, IN VIOLATION OF PENAL CODE SECTION 290.012(A), A MISDEMEANOR PURSUANT TO PENAL CODE SECTION 290.018(B).”
On May 21, 2009, appellant moved to dismiss the case on the ground “the prosecution of the defendant has been unreasonably delayed violating his right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, Article I, section 15 of the California Constitution.” On July 2, 2009, the prosecution filed a written response to appellant’s motion, asserting appellant had not met his burden to show substantial prejudice and that the delay was not an intentional device to gain a tactical advantage over appellant. The prosecution attached to its response a copy of the April 2000 notice of sex offender registration requirement. This Department of Justice form was signed by appellant and a California correctional officer. The form stated in pertinent part:
“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: [¶]... [¶]
“● I must annually, within 5 working days of my birthday, go to the law enforcement agency having jurisdiction over my location or place of residence and update my registration, name and vehicle information.”
On July 7, 2009, the court heard arguments of counsel and took the matter under submission. During the arguments, defense counsel did not reference the statute of limitations but did state: “I will concede that his speedy trial rights may not have been compromised on the later counts of 2008 [but] they certainly are compromised from 2004.” On July 17, 2009, the court denied the motion for dismissal by minute order.
Stephanie Kennedy testified appellant registered on August 9, 2004, but not within five working days of his October 1st birthday during the years 2004-2008.
B. The Statute of Limitations
Section 801 states in pertinent part:
“[P]rosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”
The statute of limitations in a California criminal case is jurisdictional. The accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations. (People v. Lopez (1997) 52 Cal.App.4th 233, 244-245.) When an issue involving the statute of limitations has been tried, we review the record to determine whether substantial evidence supports the findings of the trier of fact. Statutes of limitation must be strictly construed in favor of a defendant. The statute of limitations is not an element of the crime. Nevertheless, the prosecution has the burden of proving the criminal action was commenced within the applicable limitations period and its burden of proof is by a preponderance of the evidence. (People v. Castillo (2008) 168 Cal.App.4th 364, 369.)
An indictment or information which shows on its face that prosecution is barred by the statute of limitations fails to state a public offense. (People v. Rehman (1964) 62 Cal.2d 135, 139.) The statute of limitations constitutes a substantive rather than a procedural right which is not waived by the failure to assert it at the pleading state. The rule is a reflection of the fundamental legal principle that jurisdiction over subject matter cannot be conferred by the mere act of a litigant, whether it amounts to consent, waiver, or estoppels. The lack of such jurisdiction may be raised for the first time on appeal. (People v. Chadd (1981) 28 Cal.3d 739, 757.) If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing. (People v. Williams (1999) 21 Cal.4th 335, 341.)
C. Appellant’s Contention
Appellant argues:
“A person convicted of a registration offense, when the underlying offense that is the basis of the charge is a felony, is subject to a prison term of up to three years. (Pen. Code, § 290.018, subd. (b).) For this offense then, prosecution must have been commenced within three years after the offense was committed. (Pen. Code, § 801; People v. Johnson (2006) 145 Cal.App.4th 895.) The term ‘commenced’ refers in this case to when the information was filed. (Pen. Code, § 804, subd. (a); People v. Johnson, supra.) [¶]… [¶]
“Because the amended information in this case was filed on May 1, 2009, it may only charge offenses that are alleged to have occurred within a three-year period, to about May 1, 2006. Thus, it follows that the charges relating to 2004 and 2005, beyond the three-year statute of limitations, should not have been allowed. ‘[S]ince the statute of limitations is jurisdictional, the insufficiency of the information which shows on its face that the caused is barred, will not be waived by failure to demur or move in arrest of judgment.…’ (In re Davis (1936) 13 Cal.App.2d 109, 111.)”
D. Existing Law of Registration
Section 290 states in pertinent part:
“(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to ‘the Act’ in those sections are to the Sex Offender Registration Act.
“(b) Every person described in subdivision (c), 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 … within five working days of coming into, or changing his or her residence within, any city, county, or city and county … and shall be required to register thereafter in accordance with the Act.
“(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state of a violation of … former Section 647a.…”
Section 290.012, subdivision (a) states 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 290.018, subdivision (b) states in pertinent part:
“[A]ny person who is required to register under the Act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the Act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the Act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years.”
Section 801 states in pertinent part:
“[P]rosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.”
In In re Parks (1986) 184 Cal.App.3d 476, 480 (Parks), Division Two of the Fourth Appellate District held section 290, subdivision (a) imposes a continuing duty to register within the statutorily specified period following each change of address. The court acknowledged: “While we agree section 290 does not ‘explicitly state’ a violation is to be viewed as a continuing offense, nor does it have an ‘express provision’ defining a violation as a continuing offense, the ‘explicit language of the substantive criminal statute compels’ the conclusion it is a continuing offense.” (Id. at p. 480.)
In People v. Fioretti (1997) 54 Cal.App.4th 1209, 1217, review denied July 16, 1997, (Fioretti), the Sixth Appellate District relied on Parks and held: “Failure to register under section 290 is a continuing offense to which the statute of limitations does not apply. (Citation.)” In Wright v. Superior Court (1997) 15 Cal.4th 521 (Wright), the Supreme Court noted a registered sex offender who changes his or her residence address must notify the law enforcement agency of last registration within a specified period (§ 290, subd. (f).) Prior to January 1, 1995, failure to provide such notification was a misdemeanor and after that date, the Legislature declared it a felony. (Stats. 1994, ch. 867, § 2.7.) The Supreme Court held a felony prosecution was not prohibited as ex post facto where the defendant’s address change and failure to notify occurred when the violation was classified as a misdemeanor. (Id. at pp. 523-524.) The court further held:
“Considering section 290(f) in light of the overarching legislative intent and comprehensive statutory scheme governing the registration of sex offenders, we conclude it imposes a continuing duty to give required notification of any change of address [citation omitted]; accordingly, violation of that duty is a continuing offense. A defendant does not commit the crime only at the particular moment the obligation arises, but every day it remains unsatisfied.…” (Wright, supra, 15 Cal.4th at p. 528.)
E. Discussion
Appellant acknowledges the holdings of Parks, Fioretti, and Wright, but points out those cases dealt with registration requirements when an offender moves rather than an offender’s annual registration requirement: “Fioretti does not examine the issue in detail, and relies on In re Parks (1986) 184 Cal.App.3d 476. In both cases, the section 290 violation at issue was the respective defendant’s failure to register upon moving to a new address. That is a different offense than those appellant was convicted of -- the failure to register within 5 days of his birthday.”
The evidence in the instant case demonstrated that appellant failed to register within five working days of his October 1, 2004, birthday and within five working days of his October 1, 2005, birthday. In People v. Meeks (2004) 123 Cal.App.4th 695 (Meeks), the Third Appellate District acknowledged that failure to register pursuant to section 290 is a continuing offense. However, “simply because the Legislature intended that a violation of section 290 be a continuing offense does not mean that a defendant cannot be convicted and punished for new and separate violations of section 290 as he continues to ignore the law.” (Meeks, supra, at p. 702.) After analyzing the statute, the Meeks court concluded:
“By requiring defendants to register annually and with every change of residence, it was no doubt the Legislature’s intent to treat each violation of the registration requirements as a separate, continuing offense in order to encourage compliance with the law and to ensure to the extent possible that a sex offender’s whereabouts remain known.” (Id. at p. 703.)
Appellant attempts to differentiate Meeks by arguing: “[T]he Meeks court was not looking at the issue presented by this case. In Meeks, the defendant had argued that he could not be convicted of both failing to register upon moving and failing to register within five days of his birthday. (Meeks, supra, at pp. 702-703.) The court accepted the general notion that any violation of section 290 was a continuing offense without examining why this particular section 290 offense might be different. And appellant agrees that his convictions were continuing offenses -- he just contends that they ‘continued’ for only a year.” Appellant submits no case has addressed the fact pattern presented by this case, i.e., “where a person is convicted of multiple violations for failing to register within five days of a birthday for several consecutive years.”
Appellant’s assessment of California case law is relatively accurate in that published cases do not address his distinct point of contention. Perhaps the closest cases are People v. Cluff (2001) 87 Cal.App.4th 991(Cluff) and People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony). In Cluff, defendant was convicted of nine counts of lewd and lascivious conduct with a child under age 14. He was sentenced to a total term of nine years for those offenses and was released in 1990. At that time, prison officials informed him of his lifetime obligation to register as a sex offender. Cluff registered a number of times after changing his residence over the next five years. When Cluff registered in October 1995, a San Mateo police officer gave him a form explaining the requirements for registration. Cluff signed the form, which specifically advised that he was required to update his registration annually within so many days of his birthday. This was a new requirement that came into effect on January 1, 1995. The requirement was not highlighted on the form and Cluff did not receive a copy of the form. However, it was the officer’s habit to orally summarize the registration requirement, including the requirement of an updated annual registration.
The officer gave Cluff a temporary “compliance receipt” that had a summary of the section 290 registration law printed on the back. However, that summary did not include the new requirement of updated annual registration. Similarly, Cluff’s fingerprint card prepared at the time of the October 1995 registration did not mention the annual updating requirement. In October 1997, a San Mateo police sergeant learned that Cluff had not updated his registration during the period around his birthday in 1996 and 1997. The sergeant met with Cluff’s landlord, who confirmed that Cluff still lived at the same rental address. The landlord informed Cluff of the sergeant’s visit and Cluff made an appointment to meet with the sergeant several days later. The sergeant immediately arrested Cluff when he arrived at the police station for his appointment.
In a court trial, Cluff was convicted of failing to comply with the sexual offender registration scheme. In addition, the court found Cluff had suffered three prior strikes under the Three Strikes law and had served a prior prison term. The court denied Cluff’s motion to strike the prior conviction allegations and “with a heavy heart” sentenced Cluff to 25 years to life in state prison. Cluff appealed and petitioned for habeas corpus relief and Division Three of the First Appellate District vacated the sentenced and remanded for a new hearing under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, finding the trial court had abused its discretion when it denied Cluff’s motion to strike one or more of his priors. In reaching this conclusion, the appellate court stated:
“This record strongly suggests that Cluff committed a ‘technical’ violation of section 290, without intent to deceive or evade law enforcement. Though he failed to annually update his registration in San Mateo, Cluff consistently registered in the jurisdictions where he resided. The annual updating requirement was added to the Penal Code five years after Cluff left prison, the new requirement was omitted from the only document he was allowed to keep in 1995 when he registered in San Mateo, and the updating requirement was itself amended in 1996. When the police looked for Cluff, he was living at his registered address. After the police contacted Cluff, he immediately telephoned them and promptly came to the station.
“Thus, Cluff’s Romero motion did not lack substantial grounds on which the trial court might have exercised its discretion to strike one or more strikes. Cluff’s failure to confirm his address, by itself, posed no danger to society. Cluff was exactly where he said he would be when he registered in 1995, and the police were able to quickly find him. The purpose of the registration statute was not undermined by his failure to annually update his registration. There was no indication he had reoffended since he left prison in 1990, and Dr. Bess [the court-appointed psychologist who examined Cluff in 1998] believed that ‘with probation supervision and participation in a treatment program’ Cluff would not reoffend.” (Cluff, supra, 87 Cal.App.4th 991, 1001-1002.)
In Carmony, defendant registered his correct address as a sex offender with police one day before his birthday (pursuant to former § 290, subd. (a)(1)(A)). However, defendant failed to “update” his registration with the same information within five working days of his birthday (pursuant to former § 290, subd. (a)(1)(C)). Defendant’s parole agent was aware that defendant’s registration information had not changed and in fact arrested defendant at the address where he was registered. Defendant pleaded guilty to failure to register within five days of his birthday and admitted three prior serious or violent felony convictions and a prior prison term. The trial court sentenced him under the Three Strikes law to a term of 25 years to life plus a consecutive term for the prior prison term. The Third District Court of Appeal held the trial court abused its discretion in refusing to strike two of defendant’s three prior convictions. The Supreme Court reversed the decision and remanded the case to the Third District for consideration of constitutional issues. On further appeal, defendant claimed the application of the Three Strikes law to the offense of failing to duplicate his registration as a sex offender violates the state and federal prohibitions against cruel and/or unusual punishment, double jeopardy, and ex post facto laws, and his federal right to a jury trial. The Third District found the 25 years-to-life term constituted cruel and unusual punishment. The appellate court characterized the offense as “an entirely passive, harmless, and technical violation of the registration law” since defendant had recently updated his registration, had not moved or changed any other required registration information during the one month since he registered, and was in contact with his parole officer. (Carmony, supra, 127 Cal.App.4th at pp. 1077, 1079.) The court stated further:
“The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance. In this case the defendant did so one month prior to his birthday and was in fact present at his registered address when the arrest for the present violation was made. The stated purpose of the birthday registration requirement was (and still is) to ‘update’ the existing registration information. (Former § 290, subd. (a)(1)(C).)
“Here there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone.” (People v. Carmony, supra, 127 Cal.App.4th at pp. 1072-1073.)
Division Three of the First Appellate District decided the Cluff case in 2001. The Third Appellate District decided the Carmony case in 2005. In 2007, the Legislature adopted section 290.018, subdivision (i), which states:
“Any person who is required to register under the Act [the Sex Offender Registration Act set forth in Penal Code sections 290-290.023] who willfully violates any requirement of the Act is guilty of a continuing offense as to each requirement he or she violated.” (Emphasis added.) (Stats. 2007, ch. 579, § 26.)
Appellant is understandably concerned about the effect of multiple convictions for continuing offenses, particularly where each unregistered day following a birthday could conceivably be considered a separate continuing offense. However, appellant does not address the substance of section 290.018, subdivision (i) in his briefs on appeal except to say “there have been no cases to address appellant’s nuanced argument.” The available legislative history does not supply the precise reason for the new provision.
To that end, we note section 3 provides that “‘No part of [the Penal Code] is retroactive, unless expressly so declared.’” Our Supreme Court has “construed [section 3] to mean ‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’” (People v. Alford (2007) 42 Cal.4th 749, 753.) Appellant has not addressed the retroactivity or prospectivity of section 290.018, subdivision (i) for purposes of this appeal.
Appellant contends that “[f]ailing to reregister within five days of every birthday is not the same offense as failing to reregister within five days of moving to a new address. The first offense is a recurring, cyclical duty. The second is not.” Appellant further contends “a violation of Penal Code section 290.012 is a continuing offense only in the sense that it continues up until the next yearly duty to reregister kicks in.” While appellant correctly characterizes his contention as a “nuanced argument, ” that argument does not affirmatively address the phraseology of section 290.018.
Under the “rule of ‘lenity, ’” language in a penal statute that truly is susceptible of more than one reasonable construction in meaning or application ordinarily is construed in the manner that is more favorable to the defendant. (People v. Avery (2002) 27 Cal.4th 49, 57-58.) Nonetheless, “‘the rule [of lenity] applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.’ … ‘The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.’ [¶] Thus, although true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative intent.” (People v. Avery, supra, 27 Cal.4th at pp. 57-58.)
Section 290.018, subdivision (i) clearly states that any person who is required to register under the Sex Offender Registration Act set forth in Penal Code sections 290-290.023 “who willfully violates any requirement of the Act is guilty of a continuing offense as to each requirement he or she violated.” (Emphasis added.) The failure to reregister within five days of a birthday is not exempted from section 290.018, subdivision (i). CALCRIM No. 251 [union of act and intent: specific intent or mental state], as given to the jury, advised: “The specific intent required for the crimes in Count 2 through 6 are that the defendant knew he had to register and willfully failed to do so.”
When construing a statute, our primary task is to ascertain the Legislature’s intent. If there is no ambiguity in the language, we must presume the Legislature meant what it said and the plain meaning of the statute controls. (People v. Dieck (2009) 46 Cal.4th 934, 939-940.) The canons of statutory construction preclude judicial construction that renders part of the statute meaningless or inoperative. (Thornburg v. Superior Court (2006) 138 Cal.App.4th 43, 49.) Section 290.018, subdivision (i) plainly says: “Any person who is required to register under the Act [the Sex Offender Registration Act set forth in Penal Code sections 290-290.023] who willfully violates any requirement of the Act is guilty of a continuing offense as to each requirement he or she violated.” (Emphasis added.) The power to define crimes and fix penalties is vested exclusively in the legislative branch and courts may not expand the Legislature’s definition of a crime nor may they narrow a clear and specific definition. (People v. Farley (2009) 46 Cal.4th 1053, 1119.)
As respondent points out, nothing in section 290 limits the duties imposed by section 290.012 or 290.018. Moreover, nothing in those statutes precludes a failure to fulfill the statutory registration duties from being deemed a continuing offense. Appellant’s failure to register within five days of his birthday constituted a continuing offense and prosecution was not barred by the three-year statute of limitations.
II. APPELLANT WAS PROPERLY CONVICTED OF MULTIPLE OFFENSES
Appellant further argues that even if a violation of section 290.012 is a “continuing offense, ” the terms of the statute require that the offense “continues” for only one year. He maintains: “If the Court disagrees with that argument, then appellant contends that he should only have been convicted of one offense.”
Again, the Meeks court addressed this issue, resolving it adversely to appellant’s position:
“Failure to register under section 290 is a continuing offense (§ 290, subd. (g)(8); Wright v. Superior Court (1997) 15 Cal.4th 521, 528…), that is, one ‘marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists and there is a failure to perform that duty.’ (Id. at p. 525.) But simply because the Legislature intended that a violation of section 290 be a continuing offense does not mean that a defendant cannot be convicted and punished for new and separate violations of section 290 as he continues to ignore the law. [¶ ] … [¶ ].
“…. It would ill serve the purpose of section 290 to provide defendants who fail to register with blanket immunity from prosecution for all but a single failure to register. A defendant who knows that he is subject to prosecution for each violation of the registration requirement is more likely to comply in order to avoid additional punishment and is more likely to become visible again to law enforcement. Thus visible, he arguably is less likely to repeat his sexual crimes. By requiring defendants to register annually and with every change of residence, it was no doubt the Legislature’s intent to treat each violation of the registration requirements as a separate, continuing offense in order to encourage compliance with the law and to ensure to the extent possible that a sex offender’s whereabouts remain known.” (People v. Meeks, supra, 123 Cal.App.4th at pp. 702-703.)
Once again, appellant fails to address the meaning and applicability of section 290.018, subdivision (i), which expressly provides that “[a]ny person who is required to register under the Act who willfully violates any requirement of the Act is guilty of a continuing offense as to each requirement he or she violated.” (Emphasis added.) We agree with the analysis and holding in Meeks and the conclusion of the Fioretti court: “Failure to register under section 290 is a continuing offense to which the statute of limitations does not apply.” (Fioretti, supra, 54 Cal.App.4th at p. 1217.) Appellant’s separate convictions for failing to register within five working days of his October 1, 2004, and October 1, 2005, birthdays are proper.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO DISMISS THE STRIKE ALLEGATION
Appellant lastly contends the trial court abused its discretion in declining to exercise its discretion and strike his prior strike conviction for purposes of sentencing.
Appellant’s Request to Dismiss the Strike
On August 6, 2009, appellant filed a request for the court to dismiss his strike prior under the Three Strikes law in furtherance of justice (§ 1385). Appellant argued that he had not “reoffended in terms of sex crime since 1985” and that he was never a “fugitive from the 290 system.” He further argued his strike offense was a 1993 second-degree robbery (§ 212.5, subd. (b)) and that he had engaged in no significant felonious criminal activity since that date. Appellant further noted he was:
“[I]nvolved in a loving, stable and long term commitment with his partner. He is a Kern County homeowner and has always sought gainful employment. He served his time on the 1994 matter and was a model prisoner. He is deeply remorseful over the original incident, and deeply embarrassed over the current allegations.”
On August 17, 2009, the prosecutor filed written opposition to appellant’s request, noted appellant’s extensive criminal history, and maintained that appellant was within the scheme of the Three Strikes law.
A. Ruling of the Superior Court
At the September 2, 2009, sentencing hearing, the court heard the arguments of counsel and ruled:
“I’m looking at defendant’s criminal history here as laid out in the probation officer’s report, and I’m going to go ahead and start looking on page three as to when the defendant was an adult.
“So we’ll go to page three, line six, 1990 DUI offense, not counting the DUI offense from ’85 where he went to CYA and was -- violated parole four or five times there.
“1990 he picked up a DUI and he violated his probation a number of times on that DUI.
“And in ’91 he picked up a 14601, violated probation there. [¶]... [¶ ]
“’93 he picked up his strike felony, robbery, with a 12022.5, five years in the joint, and he violated parole one, two three -- four times before he was discharged in 2000.
“He picked up an 11364 in 2001. Violated probation on that a number of times. It looks like three times. Eventually reinstated.
“2003, he picked up a 290(g)(1). Violated his probation on that twice. And that was a similar charge to what we have here that he was convicted as a felony.
“2004, he picked up a 273.5, misdemeanor. Violated probation on that a couple of times.
“And then just some minor stuff since 2005, 146, 647(f), that kind of thing.
“But the defendant has shown he has a very rough time following terms and conditions of parole or probation.
“There was evidence in this particular case that [was] presented that he knew he was supposed to register here and failed to do it.
“The strike came right in the middle of all this. 1993, soon after he became an adult. But the continued violations of parole, ’97, ’98, ’99, 2000, bothers this Court that we’re not getting through to Mr. Aguero and that in this particular case he knew he was supposed to register, but didn’t want to do it.
“So it appears to this Court that Mr. Aguero is told the rules, is told the parameters of what he needs to do, and now he needs to do it and wishes not to do it.
“When you look the case law regarding People versus Romero, which allows the Court to use its discretion under 1385 to dismiss a strike, in the interest of justice, I don’t see that it applies in this case.
“Looking at Mr. Aguero’s record, and what he’s done since his release from the California Youth Authority, he suffered, by my count, either 14 or 15 criminal convictions, including the strike prior.
“I think the defendant does not fall within an exception to the three strikes law, and as a result the Court will follow both the spirit and the letter of the California three strikes law and deny defendant’s motion to dismiss.”
B. Applicable Law
A criminal defendant’s request that a court strike one or more strike convictions pursuant to section 1385 is commonly called a Romero motion. (See People v. Superior Court (Romero), supra, 13 Cal.4th 497 (hereafter Romero).) That statute provides, in relevant part: “The judge or magistrate may … in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) In Romero, the California Supreme Court concluded that section 1385, subdivision (a) “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (Romero, supra at pp. 529-530.) And although “[a] defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385, ” a defendant “[has] the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading....’” (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
A criminal defendant has no right to move to strike a prior felony conviction pursuant to section 1385. (People v. Hernandez (2000) 22 Cal.4th 512, 522.) Rather, a defendant may only ask the trial court to exercise its discretion under section 1385. Nevertheless, requests of this kind are commonly made in the conventional form of a motion pursuant to Romero. (People v. Gillispie (1997) 60 Cal.App.4th 429, 432-433, fn. 1.)
In reviewing the denial of a Romero motion, the trial court’s decision to strike or not strike a previous serious or violent felony is reviewed under a deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 374.) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (Ibid.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, at p. 377.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Id. at p. 378.)
In People v. Williams (1998) 17 Cal.4th 148 (Williams), our Supreme Court summarized the “deferential” standard of review of a Romero ruling for abuse of discretion as “whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (Williams at p. 162.) On appeal, “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Here, the trial court properly exercised its discretion by examining permissible factors such as appellant’s prior convictions, current convictions, and his failure to comply with conditions of probation and parole. The court’s decision to deny the Romero motion was neither irrational nor arbitrary considering appellant’s lengthy criminal history, difficulty in following the terms and conditions of probation and parole, and refusal to operate within the statutory parameters governing sex offender registration. Thus, appellant is not a defendant who “‘may be deemed outside the [Three Strikes law’s] spirit, in whole or in part, and hence should be treated as though [he] had not previously been convicted of one or more serious and/or violent felonies.’” (Carmony, supra, 33 Cal.4th at p. 377.) The trial court did not abuse its discretion in denying the Romero motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Kane, Acting P.J., Detjen, J.