Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 193987, Bernard E. Revak, Judge.
HALLER, J.
A jury found James Rodriguez willfully failed to comply with statutory registration obligations applicable to sex offenders. (Pen. Code, § 290, subd. (g)(2).) The jury also found Rodriguez committed arson and vandalism when he destroyed a GPS system that law enforcement officers had put on his vehicle. The jury could not reach a verdict on firearm possession counts, and these counts were dismissed. The court imposed a sentence of two years and eight months.
Penal Code section 290 (section 290) has been amended numerous times. The version of section 290 applicable here is the statute in effect from January 1, 2005 to October 6, 2005. (§ 290, amended by Stats. 2004, ch. 761, § 1.3.) All references to section 290 are to this version, unless otherwise specified.
On appeal, Rodriguez contends: (1) former section 290 was unconstitutionally vague with respect to his obligation to register at a second address; (2) the court erred in failing to instruct on a five-day residency requirement; and (3) the court erred in failing to permit him to rely on an affirmative defense requiring the registering agency to provide him written notice of his increased reporting obligations. We reject these contentions and affirm.
SUMMARY OF RELEVANT FACTS
Section 290 establishes a lifetime registration requirement for those convicted of certain sex offenses. The parties stipulated that Rodriguez was previously convicted of a felony that required him to register as a sex offender under section 290.
Before 2004, Rodriguez was a patient at Atascadero State Hospital (Atascadero). During that time, he became involved in a romantic relationship with one of his treating psychologists, Dr. Elizabeth Snider. Dr. Snider advocated for Rodriguez's release without fully disclosing the relationship to prosecutors and law enforcement officials.
Rodriguez had been committed to Atascadero as a sexually violent predator (SVP) under Welfare and Institutions Code section 6600, but the jury was not told of this status.
At trial, the parties frequently referred to Dr. Snider as Dr. Thompson, which was Dr. Snider's former married name and had been used in many of the prior Atascadero reports and other law enforcement documents.
In April 2004, Rodriguez was released from Atascadero, and began living at a trailer on the Santa Ysabel Indian Reservation (Reservation). When Rodriguez first arrived at the Reservation, two law enforcement officers met with him and he completed his first sex offender registration form. He identified as his home address an address on School House Canyon Road, located on the Reservation. The officers notified him he was required to reregister every 90 days.
Throughout 2004, Rodriguez timely complied with this reregistration requirement. The 2004 registration form, known as Registration Form 8102, consisted of a single page that requested the individual's name, identifying information, address, employment information and vehicle identification. The form then contained numerous separate requirements and a blank space for initials next to each requirement. Of relevance here, one of the requirements stated: "If I have more than one residence address or transient location, I must register all addresses and/or locations with the agency or agencies having jurisdiction over them." Each time he reregistered in 2004, Rodriguez put his initials to the left of this sentence. This requirement was based on the 2004 version of section 290, subdivision (a)(1)(B), governing multiple address registration requirements.
Effective January 1, 2005, the Registration Form was modified with respect to the multiple residence registration requirement to reflect an amendment to section 290, subdivision (a)(1)(B). Specifically, on the Registration Form, the multiple residence requirement was modified to add the new statutory phrase italicized below: "If I have more than one residence address at which I regularly reside (regardless of how many days or nights), I must register all addresses and/or locations with the law enforcement agency . . . ." (Italics added.) We shall refer to this notice provision as the 2005 multiple residence notice.
The only difference in this language on the modified form and the 2005 amended statutory version was that the statute referred only to "nights." (See § 290, amended by Stats. 2004, ch. 761, § 1.3.) It was not until the next year that the "days" term was added. For purposes of our analysis in this appeal, this difference is not material.
In February 2005, Rodriguez reregistered and completed the 2005 Registration Form. In so doing, he initialed in the space next to the 2005 multiple residence notice.
In March 2005, law enforcement officers learned that Rodriguez might be staying overnight several times each week with Dr. Snider, who lived in Coronado. In response, two officers visited with Rodriguez on the Reservation, and reminded Rodriguez of his responsibility to register at a concurrent address if he was staying at a residence in addition to the trailer on the Reservation. Rodriguez asked whether he was required to register if he stayed with someone only one time. The officers responded that he did not have to register for a "one-night stand" type of visit, but did have to register if he was "seeing that person repeatedly."
The next day, Rodriguez came into the registration office to update his vehicle identification. The registering officer asked whether he wanted to register the Coronado address, but Rodriguez replied that he had talked to his girlfriend about it and he "wasn't going to be sleeping there anymore."
On May 3, 2005, Rodriguez again completed the 2005 Registration Form, and initialed in the space adjacent to the 2005 multiple residence notice. However, he registered only his Reservation address.
Several weeks later, Dr. Snider moved to a mobile home in Ramona. Dr. Snider's new residence was about a 35-minute drive from the Reservation. Beginning in June or July, Dr. Snider's neighbors saw Rodriguez "on a regular basis" at Dr. Snider's home, and saw Rodriguez's truck several times a week, including overnight. After learning that Rodriguez was a registered sex offender, the neighbors reported Rodriguez's presence to the police.
On August 3, 2005, Rodriguez reregistered and completed a 2005 Registration Form. He again initialed the space next to the 2005 multiple residence notice. On the registration form, however, he identified only his Reservation address. When the registering officer asked him whether he wanted to identify any other concurrent addresses, Rodriguez declined to do so.
Two weeks later, on August 18, law enforcement officers asked Rodriguez to return to the sheriff's department to update his registration form. On that date, a law enforcement officer specifically discussed the concurrent address requirement with Rodriguez and reminded him that "if you have more than one residence address, you need to update that information." However, after initialing the space next to the 2005 multiple residence notice, he again identified only his Reservation address.
Three weeks later, on September 6, Rodriguez was asked to return to the sheriff's department to update his registration form. On that date, the registering officer reiterated that Rodriguez was required to register each and every address where he regularly stayed, regardless of the number of days or nights of his stay. Rodriguez also initialed the space next to the 2005 multiple residence notice. However, Rodriguez again identified only his Reservation address. While he was at the sheriff's department, officers attached a GPS device to his truck.
Ten days later, officers learned that Rodriguez may have found and then destroyed the GPS device. On September 19, a sheriff commander requested the return of the GPS device. Rodriguez said he put the device back on the truck, but it must have fallen off the truck.
Four days later, law enforcement officers searched Dr. Snider's residence, and found Rodriguez's clothing, personal supplies, medication, and documents. Dr. Snider admitted that Rodriguez stayed at her home approximately three times each week. She told the officers that she did not want Rodriguez to register her address because the sheriff's department would notify neighbors, and she did not want this to occur.
Several days later, law enforcement officers conducted a search of Rodriguez's trailer at the reservation. Officers found there was nothing "operational" in the trailer. There was no running water, propane, or electricity, and there were very few clothing items.
Later that day, Rodriguez was arrested. At the time of his arrest, Rodriguez admitted that he had stayed at Dr. Snider's house.
The district attorney charged Rodriguez with willfully failing to comply with section 290's registration requirements. (§ 290, subd. (g)(2).) At trial, the prosecution's theory of section 290 liability was that Rodriguez willfully failed to register Dr. Snider's residence as a concurrent address. The prosecutor presented each 2004 and 2005 Registration Form showing Rodriguez's initials next to the multiple residence notice, and called the law enforcement officers who had discussed this requirement with Rodriguez. In her testimony, Dr. Snider denied that Rodriguez was living with her, but acknowledged that she had previously told law enforcement officers that Rodriguez was staying with her three times each week. Dr. Snider's neighbors also testified that they saw Rodriguez at Dr. Snider's home almost every day, and saw his truck at the home "hundreds" of times. Based on this evidence, the prosecution argued that Rodriguez was regularly residing at Dr. Snider's residence and knew he was required to register Dr. Snider's address, but intentionally decided not to do so because Dr. Snider did not want him to identify her address.
Rodriguez was also charged with vandalism, arson, and firearms possession, but we omit any further discussion of these counts because these counts are not at issue on appeal.
Rodriguez did not testify or present any affirmative evidence. Defense counsel argued the prosecution did not prove its case because the evidence was not credible that he regularly stayed at Dr. Snider's home and because Rodriguez had been misinformed of the concurrent address registration requirements.
On the section 290 count, the court instructed the jury as follows: "To prove that the defendant is guilty of this crime, the people must prove: 1. The defendant was previously convicted of a felony requiring him to register; 2. The defendant resided in San Diego County; 3. The defendant actually knew he has a duty to register as a sex offender under Penal Code section 290 wherever he resided; and [4]. The defendant willfully failed to register as a sex offender within five working days at a concurrent address at which he regularly resided regardless of the number of nights spent there. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] The defendant is charged in count 1 with failing to register a concurrent address. Before you may find the defendant guilty of the charge, you must be satisfied that the prosecution has proven beyond a reasonable doubt both that the defendant had actual knowledge of his duty to register the concurrent address, and that the defendant willfully failed to register the concurrent address. [¶] A failure to register a concurrent address which is the result of omission based on lack of knowledge is not willful. Before you may find the defendant guilty of count 1, you must find beyond a reasonable doubt that the defendant purposely violated the registration statute. The defendant is not guilty of count 1 if his failure to register the concurrent address was the result of his actually not knowing he was required to register that address."
Based on the evidence and instructions, the jury found Rodriguez guilty of failing to comply with the section 290, subdivision (a)(1)(B) concurrent registration requirement.
DISCUSSION
I. Former Section 290 Was Not Unconstitutionally Vague
Rodriguez was prosecuted for willfully failing to comply with section 290, subdivision (a)(1)(B), which provided: "If the person who is registering has more than one residence address at which he or she regularly resides, he or she shall register . . . in each of the jurisdictions in which he or she regularly resides, regardless of the number of nights spent there. If all the addresses are within the same jurisdiction, the person shall provide the registering authority with all of the addresses where he or she regularly resides."
Rodriguez contends the requirement that he register each residence at which he "regularly resides" was void for vagueness because it was not reasonably possible to understand the meaning of this requirement. (§ 290, subd. (a)(1)(B).)
A law that is void for vagueness "fails to provide adequate notice to those who must observe its strictures" and " 'impermissibly delegates basic policy matters to [police officers], 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) 14 Cal.4th 1090, 1116.) "Because we assume that individuals are free to choose between lawful and unlawful conduct, 'we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly.' " (People v. Heitzman (1994) 9 Cal.4th 189, 199.) "[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.) And if the challenged statute clearly applies to a criminal defendant's conduct, the defendant may not challenge it on grounds of vagueness in other contexts. (Parker v. Levy (1974) 417 U.S. 733, 756.)
Viewing section 290, subdivision (a)(1)(B) in the context of this case, a person would have reasonable notice of the meaning of the multiple residence registration requirement. As we observed in People v. McCleod (1997) 55 Cal.App.4th 1205, a " 'residence' is a common term, easily understood by persons of ordinary intelligence as 'connot[ing] more than a passing through or presence for a limited visit' . . . ." (Id. at p. 1218.) The statutory term "regularly" further clarifies the meaning of this residence requirement by confirming that the person's stay at the residence must be of a recurring type, rather than a single stay or limited visit. (§ 290, subd. (a)(1)(B).) The additional statutory phrase "regardless of the number of nights spent there" also makes clear that a second address must be registered if the individual "regularly resides" at the address, even if the number of nights spent there is minimal. (Ibid.)
These provisions would give a reasonable person notice of the meaning of the multiple residence registration requirement under the factual circumstances here. The evidence showed Rodriguez stayed at Dr. Snider's home on a regular basis; his clothes and personal items were there; his vehicle was parked there overnight at least several times a week; and his own trailer had no utilities or plumbing. A person would reasonably understand that this living arrangement would trigger the need to register Dr. Snider's address pursuant to section 290, subdivision (a)(1)(B).
Rodriguez misreads the current statute when he says the Legislature has now defined the phrase "regularly resides." Although the Legislature added a definition of the nature of a "residence" (to include such locations as a home, "homeless shelter[ ]," or "vehicle[ ]"), it has not further defined the "regularly reside" requirement, other than to add "days" to the phrase "regardless of the number of days or nights." (§ 290, subd. (a)(1)(B).)
In arguing to the contrary, Rodriguez cites to various statements made by the law enforcement officers to Rodriguez regarding the need to register a second residence. He argues that based on these statements, a reasonable person could have believed that "if a sex offender received a job as a mail man" he would need to register every address at which he delivers mail and that an offender would be required to register his therapist's office. This argument is unpersuasive for a number of reasons.
First, Rodriguez's partial quotations of the officer's descriptions are taken out of context. Viewed in a reasonable manner, the officers properly informed Rodriguez that "regularly resides" means to stay at a residence in a recurring manner that is more than a "one night stand" type of activity. Additionally, in determining whether a statute is unconstitutionally vague, we apply an objective test and look to the statutory language and, if necessary, its history—but not to the particular statements made about the meaning of the legislation to the defendant. To the extent that Rodriguez believes he was misled by the police officers and/or did not understand the meaning of the "regularly reside" reporting requirement, he was entitled to (and did) make this argument to the jury. The jury was instructed the prosecution had the burden of proving Rodriguez had actual knowledge of the concurrent residence requirement, and that this requirement was defined as requiring registration for every place at which an offender "regularly resided regardless of the number of nights spent there." The jury's finding of guilt on this count reflects its rejection of Rodriguez's argument that he was misinformed about the concurrent residence requirement.
In reaching our conclusion that section 290 is not unconstitutionally vague, we reject the Attorney General's suggestion that the term "residence" is not vague because the statute defined the term as a "place where a person is living or temporarily staying for more than five days . . .," citing section 290, subdivision (a)(1)(C)(vii). As Rodriguez notes in his reply brief, this definition expressly applies to a "transient" sex offender and it is undisputed in this case that Rodriguez was not a transient within the meaning of section 290, subdivision (a)(1)(C).
In an unsolicited supplemental brief filed with this court, Rodriguez changes his position and suggests for the first time that the "more than five days" definition of residence applied to the concurrent residence reporting requirement. He thus argues we must reverse the judgment because: (1) the court failed to sua sponte inform the jury of this five-day stay requirement; and (2) there was insufficient evidence that Rodriguez lived or stayed at Dr. Snider's residence "more than five days in a row."
This "five-day" definition lasted only nine months; effective October 7, 2005, the definition was changed to track the language of the multiple residences requirement. (Stats. 2005, ch. 722, § 3, signed into law as an urgency measure on Oct. 7, 2005.)
These arguments are waived because they were not raised at trial or in Rodriguez's initial appellate briefs. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) The arguments are contrary to the position advocated by defense counsel at trial and the arguments asserted in Rodriguez's opening and reply briefs.
We also reject Rodriguez's arguments on their merits. As Rodriguez initially asserted, section 290, subdivision (a)(1)(C) contains requirements expressly applicable only to "transient" sexual offenders. It was enacted in response to People v. North (2003) 112 Cal.App.4th 621, in which the court held section 290 was unconstitutionally vague as it relates to transient offenders. (Concurrence in Sen. Amends., Assem. Bill No. 2527 (2003-2004 Reg. Sess.) as amended Aug. 9, 2004.) The Legislature sought to codify (for purposes of transient offenders) North's view that the term "residence" means a place where a person resides for the registration grace period (in 2005 that was five days), and to define the nature of a residence 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." (Ibid.) Because the Legislature placed the definition only in the "transient" section of the statute and prefaced the subdivision with the phrase "[f]or purposes of this section," the Legislature did not intend the definition to extend to the concurrent registration requirement. (§ 290, subd. (a)(1)(C)(vii).) This conclusion is additionally supported by the fact that as part of this same legislative package, the Legislature added the phrase in section 290, subdivision (a)(1)(B) (governing concurrent registration for nontransients) that a person must register at a second residence "regardless of the number of nights spent there." (§ 290, subd. (a)(1)(B), italics added.) It would not make sense for the Legislature to have added this "regardless" language if it intended the five-day stay requirement to apply to the concurrent registration requirement. In construing legislation, "[w]e must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' " (People v. Murphy (2001) 25 Cal.4th 136, 142; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407.)
More recently, in People v. Poslof (2005) 126 Cal.App.4th 92, the court rejected the argument that the concurrent residence registration requirement applies only if an individual has stayed at the second location for at least five consecutive working days. (Id. at pp. 101-103.) Although the court was interpreting a later version of section 290, the court's reasoning is applicable here. "Subdivision (a)(1)(B) which applied to a sex offender such as defendant who stayed at more than one location . . . [¶] . . . [does not] state[ ] or impl[y] that a sex offender need not register if he stays at a second or additional location for less than five consecutive days. . . . [¶] . . . [¶] The purpose of section 290, of assuring that convicted sex offenders shall be readily available for police surveillance, would be defeated were an offender allowed to remain at one or more undisclosed locations on a regular basis simply because the offender limited his regular or weekly stay to less than five consecutive work days a week. To read into the registration statute such a contrived construction would render section 290, subdivision (a)(1), nonsensical, subvert the purpose of the statute, and make surplusage of the words 'regularly resides' contained in that provision. This case provides a graphic example of how a sex offender could easily evade section 290 registration requirements if we were to adopt the restricted meaning of additional or multiple residences put forth by defendant." (Id. at pp. 101-103, fns. omitted.)
II. Lack of Written Notice Defense
Rodriguez alternatively contends the court committed prejudicial error by failing to permit him to present an affirmative defense that he was not provided written notice of the increased registration requirement. The increased registration requirement to which he refers is the addition in the 2005 statute of the phrase "regardless of how many nights" in the multiple residence registration provision. (§ 290, subd. (a)(1)(B).) For support of his assertion that lack of written notice is a defense, Rodriguez relies on section 290, subdivision (l)(2).
As explained below, we reject this contention. First, the section 290, subdivision (l)(2) defense is not applicable to the section 290, subdivision (g)(2) offense for which Rodriguez was convicted. Second, even if Rodriguez was entitled to assert this defense, there was insufficient evidence in the record supporting that he was not provided written notice. The undisputed evidence showed Rodriguez was repeatedly provided with written notice of his 2005 multiple registration obligations.
A. Section 290, Subdivision (l) Defense Is Not Applicable to Subdivision (g)(2)
Section 290, subdivision (l) provides: "(1) Every person who, prior to January 1, 1997, is required to register under this section, shall be notified whenever he or she next reregisters of the reduction of the registration period from 14 to 5 working days. This notice shall be provided in writing by the registering agency or agencies. Failure to receive this notification shall be a defense against the penalties prescribed by subdivision (g) if the person did register within 14 days. [¶] (2) Every person who, as a sexually violent predator . . . is required to verify his or her registration every 90 days, shall be notified whenever he or she next registers of his or her increased registration obligations. This notice shall be provided in writing by the registering agency or agencies.Failure to receive this notice shall be a defense against the penalties prescribed by paragraph (5) of subdivision (g)." (Italics added.)
Section 290, subdivision (g) provides the penalties for violating section 290's registration requirements. Section 290, subdivision (g)(2) provides: "Except as provided in paragraphs (5), (7) and (9), any person who is required to register under this section . . . who willfully violates any requirement of this section . . . is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years." Section 290, subdivision (g)(5) provides: "Any person who has ever been adjudicated [an SVP], and who fails to verify his or her registration every 90 days . . . shall be punished by imprisonment in the state prison, or in a county jail not exceeding one year."
In this case, the district attorney charged Rodriguez with violating section 290, subdivision (g)(2). The jury was instructed that it must find a willful violation of the reporting statute. The jury found Rodriguez guilty of the section 290, subdivision (g)(2) charge. On this record, Rodriguez's argument that he was entitled to rely on the section 290, subdivision (l)(2) defense is without merit. Under the express terms of section 290, subdivision (l)(2), the lack of written notice is a defense only to the charges under section 290, subdivision (g)(5). Rodriguez was not charged, or convicted, under section 290, subdivision (g)(5).
The Legislature's intent to limit the section 290, subdivision (l)(2) defense to a section 290, subdivision (g)(5) offense is supported by the broader language contained in section 290, subdivision (l)(1). Section 290, subdivision (l)(1) states that the failure to provide written notice that the statute had been changed to reduce the registration period from 14 days to 5 days "shall be a defense against the penalties prescribed by subdivision (g) . . .," without limiting the defense to charges under subdivision (g)(5). Section 290, subdivision (l)(2) states that the failure to provide written notice of increased registration obligations "shall be a defense against the penalties prescribed in paragraph (5) of subdivision (g)." (Italics added.) Where the Legislature makes two different statutory references in the same subdivision, it is reasonable to infer that the Legislature had a different intent with respect to each of them. (Craven v. Crout (1985) 163 Cal.App.3d 779, 783 ["Where a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent"].) Although the failure to provide written notice under section 290, subdivision (l)(1) is a defense to all the subdivisions of section 290, subdivision (g), there was no claim in this case that the registering agency violated the section 290, subdivision (l)(1) notice requirement.
This limitation on section 290, subdivision (l)(2)'s written notice defense makes sense in the context of the statutory scheme. Under section 290, subdivision (g)(2), the defendant must "willfully" violate a section 290 registration requirement. (§ 290, subd. (g)(2); People v. Garcia (2001) 25 Cal.4th 744, 751-754).) To find "willfulness," the jury must find the defendant had "actual knowledge of the act's legal requirements." (Id. at p. 754.) However, this willfulness element is not required to prove criminal liability under section 290, subdivision (g)(5), which governs when a person adjudicated as a sexually violent predator fails to verify his residence every 90 days. Because section 290, subdivision (g)(2) requires a willful violation, the Legislature could reasonably decide the absence of written notice of the reporting requirements should not serve as a defense to the crime because the prosecution would have necessarily proved the defendant had actual knowledge of the requirements. However, with respect to section 290, subdivision (g)(5), an SVP may be convicted of violating the registration statute even if he or she did not have actual notice of the statutory requirements (with potential lesser penalties). Under the easier-to-prove provision of section 290, subdivision (g)(5), the Legislature could have reasonably decided that the lack of written notice should be a defense.
B. Evidence Does Not Support Section 290, Subdivision (l)(2) Defense
Even if section 290, subdivision (l)(2)'s affirmative defense applied in this case, the court properly refused to instruct on, or to permit Rodriguez to rely on, this defense. The documentary evidence showed that Rodriguez was specifically given written notice at least four times during 2005 that "If I have more than one residence address at which I regularly reside (regardless of how many days or nights), I must register all addresses and/or locations with the law enforcement agency or agencies having jurisdiction over them." On each occasion, Rodriguez placed his initials next to this sentence. This evidence established that the registering agency fulfilled its obligation to provide Rodriguez with written notice of his increased registration obligation.
On this record, the court did not err in refusing to instruct that the failure to provide notice of increased registration obligations is a defense to the charges. A court has the duty to instruct on the general legal principles relevant to the issues raised in a criminal case. (People v. Earp (1999) 20 Cal.4th 826, 885.) However, there is no duty to instruct on a defense unsupported by substantial evidence. (People v. Memro (1995) 11 Cal.4th 786, 868.) Minimal and insubstantial evidence supporting a defense theory is not enough to compel the giving of an instruction. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.)
Rodriguez contends the instruction should have been given because the jury could have concluded the written notice requirement was not met because "[t]here was no pamphlet or explanation sheet to take home." However, there is nothing in the statute requiring the agency to give a sex offender a separate written document. Rodriguez alternatively argues that the jury could have found the language was unclear or "hidden" on the back of a form. However, the Registration Forms, which were exhibits at trial, did not leave any room for this argument. The notice language was clear; it replicated the plain language of the statute governing registration requirements applicable to multiple residences. The fact that the notice was on the back of the Registration Form does not negate that the required notice was given because it was undisputed that Rodriguez placed his initials next to the notice.
Similarly, the court's refusal to permit Rodriguez's counsel to argue this defense during closing arguments was not error. Trial courts have the right to "limit argument to defenses supported by substantial evidence." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) The trial court properly refused to permit defense counsel to speculate about a theory that Rodriguez was not provided with written notice that had no evidentiary support.
We note that in any event defense counsel was permitted to argue to the jury (without objection) that the registering agency should have given Rodriguez a separate written pamphlet of his registering obligations.
Rodriguez's reliance on People v. Jackson (2003) 109 Cal.App.4th 1625 is misplaced. In Jackson, the trial court failed to instruct the jury on a necessary element of the crime (willful failure to register) and there was no evidence the defendant knew of the multiple residence registration requirement. (Id. at pp. 1632-1635.) In this case, it is undisputed the court fully and properly instructed the jury on the elements of the crime. Rodriguez contends only that the court should have instructed on an affirmative defense. Because this defense was not applicable to the charged crime, there was no error. Further, even if this defense was conceptually applicable, there was no evidence to support the defense and therefore the court did not err in refusing to instruct and/or to allow argument on the defense.
We also reject Rodriguez's argument that the court erred in permitting the prosecutor to argue that the law enforcement officers did not have an affirmative obligation to prevent Rodriguez from violating section 290.
In his closing arguments, defense counsel asserted that in addition to informing Rodriguez of his reporting obligations regarding a second residence, the law enforcement officers should have specifically told Rodriguez to identify Dr. Snider's address on the Registration Form. In her rebuttal, the prosecutor urged the jury to reject this argument. The prosecutor analogized the defense argument to an assertion that if a police officer sees a young man attempting to break into a residence that he should "go tap on [his] shoulder . . . to let him know he shouldn't be doing this . . . [a]nd . . . say, 'Hey, you just need to know if you break through the screen, you're committing a burglary.' "
Viewed in context, the prosecutor's remarks were proper because they reflected the officers' limited duties towards Rodriguez. Although the officers had a duty to explain to Rodriguez his reporting obligations, it was not their duty to make the report on Rodriguez's behalf or to affirmatively prevent him from violating the law. Further, the court instructed the jury that the prosecution had the burden to prove that Rodriguez had actual knowledge of his duty to register at all addresses at which "he regularly resided." The court also instructed the jury that it "must follow the law as I explain it to you . . . . If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." We are required to presume the jury followed this instruction, and did not accept the prosecutor's statements to the extent they conflicted with the court's other instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
DISPOSITION
Judgment affirmed.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.