Opinion
C084693
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN RAY THOMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE021732)
A jury found defendant Steven Ray Thompson guilty of failing to register as a sex offender (Pen. Code, § 290.018. subd. (a)) but not guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations he had two prior convictions that qualified as strikes under the three strikes law (§§ 667, subds. (b)-(i) & 1170.12) and had served seven prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to an aggregate term of eight years in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends his conviction must be reversed because the transient sex offender registration statute (§ 290.011) is unconstitutionally vague and ambiguous. He further contends a minute order issued by the trial court must be corrected because it erroneously reflects that he was convicted of possession of methamphetamine. We will direct the trial court to correct the minute order and affirm the judgment.
FACTUAL BACKGROUND
In light of the limited issues raised on appeal, we only briefly summarize the relevant facts.
Defendant, a convicted sex offender, was required to register as a sex offender upon his release from prison in October 2016. He was also required to wear a global positioning system (GPS) ankle monitor.
Defendant is required to register as a sex offender for life (§ 290, subds. (b) & (c)) due to his 1991 conviction for sexual battery with force (§ 243.4, subd. (a)).
On October 12, 2016, defendant registered with the Sacramento Police Department as a transient. At that time, he was informed that transients must update their address every 30 days or within five days of moving to a residence. The registration form, which defendant initialed and signed, defined the terms "address," "additional address," and "residence."
On November 8, 2016, defendant's parole officer spoke with defendant at 3240 Del Mar Way, the home of defendant's deceased mother. The parole officer told defendant that he was required to register as a resident of that address because the data from his ankle monitor showed that he was at the residence every day and appeared to be sleeping there at night. Defendant failed to comply with his parole officer's directive. On November 14, 2016, he registered as a transient residing in the area of Del Mar Way and Arcade Boulevard. The registration form contained the same information as the form he previously signed and initialed.
On November 15, 2016, officers conducted a parole search at 3240 Del Mar Way after receiving an anonymous tip that defendant was on parole and had a gun at that residence. When the officers arrived, defendant was in the garage with his girlfriend.
A search of the garage revealed, among other things, a methamphetamine pipe, a plastic baggie containing approximately seven grams of methamphetamine next to an EBT (electronic benefit transfer) card belonging to defendant, and several containers with men's clothing and personal items. A search of the shed in the backyard revealed, among other things, prescription medication belonging to defendant, paperwork with defendant's name on it, and a significant amount of personal property and clothing. Defendant's parole paperwork was found inside the residence in a bedroom.
The data from defendant's ankle monitor showed that he was spending a considerable amount of time at 3240 Del Mar Way during the first two weeks of November 2016. The data also showed that defendant was at the residence for significant periods of time in October 2016.
When defendant testified, he claimed that he was homeless and stayed near 3240 Del Mar Way after he was released from prison. He denied that he lived at that residence. He also denied that he told any law enforcement officer that he lived in a tent. However, he admitted that he regularly slept in a truck in front of 3240 Del Mar Way, on the front porch of the residence, or in the shed in the backyard. He also admitted that he slept inside the residence two or three times, used the bathroom, and received mail at the residence.
Defendant explained that he failed to register the Del Mar Way address because he believed he needed to have a lease or rental agreement with the landlord or the owner of the property to trigger the registration requirement. He claimed he was told this information by the officer who he registered with.
Defendant admitted that he was told to register the Del Mar Way address by his parole officer because the GPS data showed he was staying at that address every night. However, he claimed that it was agreed that he did not need to register the address until he finished cleaning the shed and moved into it.
In rebuttal, an officer testified that defendant told him on the date of the search that he was staying in a tent in the backyard of 3240 Del Mar Way.
DISCUSSION
I
Constitutional Challenge to Section 290 .011
Defendant contends that his conviction must be reversed because subdivisions (b) and (g) of the transient sex offender registration statute (§ 290.011) are unconstitutionally vague in that those subdivisions do not provide the kind of notice that enables ordinary people to understand what is meant by the phrases "moves to a residence" and "regularly resides." Defendant further contends that these subdivisions are unconstitutionally vague because they authorize and encourage arbitrary and discriminatory enforcement. We reject defendant's contentions.
" 'The due process concept of fair warning is the underpinning of the vagueness doctrine, which "bars enforcement of 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " ' " (People v. North (2003) 112 Cal.App.4th 621, 628 (North).) " ' "Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement." [Citation.]' [Citation.]" (Ibid.)
Two principles guide the evaluation of a constitutional claim of vagueness. " 'First, "abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness." [Citation.] Second, only reasonable specificity is required. [Citation.] Thus, a statute "will not be held void for vagueness 'if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.' " [Citation.]' [Citation.] [¶] Terms that might otherwise be considered vague may meet the standard of reasonable certainty when considered in context with other terms, and in view of the legislative purpose." (North, supra, 112 Cal.App.4th at p. 628.)
The purpose of the registration statute " ' "is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future." ' [Citations.] [¶] This objective would be defeated entirely were an offender allowed to remain at one or more undisclosed locations on a regular basis, even if the locations were not the offender's exclusive abode. [Citations.] '[S]ex offenders often have a transitory lifestyle or deliberately attempt to keep their movements secret.' [Citation.] An offender would hardly be subject to 'surveillance at all times' if he or she were not required to register addresses at which the offender spent more than a brief, passing amount of time. [Citation.]" (People v. Horn (1998) 68 Cal.App.4th 408, 417, fns. omitted (Horn).)
In accordance with this purpose, and as relevant here, section 290.011 provides that a transient who "moves to a residence" has five working days within which to register at that address. (§ 290.011, subd. (b).) Section 290.011, subdivision (g) defines a transient as "a person who has no residence." It defines " '[r]esidence' " 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." (§ 290.011, subd. (g).)
"Black's Law Dictionary explains that 'Residence usu[ally] just means bodily presence as an inhabitant in a given place.' [Citation.] Black's Law Dictionary notes there is a distinction between the terms 'residence' and 'domicile,' explaining that 'domicile usu[ally] requires bodily presence plus an intention to make the place one's home. A person thus may have more than one residence at a time but only one domicile.' [Citation.]" (People v. Gonzales (2010) 183 Cal.App.4th 24, 39 (Gonzales); see id. at pp. 37-39 [rejecting claim that the definition of "residence" in § 290.011, subd. (g) is unconstitutionally vague and ambiguous because the definition does not give a convicted sex offender a reasonable opportunity to know when he must register a dwelling as a residence].)
We reject defendant's vagueness challenge to section 290.011. Defendant's challenge concerns the phrases "moves to a residence" and "regularly resides." The provisions governing reregistration after a change from transient status to residential status are not unconstitutionally vague. They provide adequate notice as to when a transient sex offender is required to reregister at a residence address. Contrary to defendant's contention, the transient registration statute provides the kind of notice that enables ordinary people to understand what conduct it prohibits, and is sufficiently specific such that it does not authorize or encourage arbitrary and discriminatory enforcement.
Defendant complains that the phrase "regularly resides" is not defined, which makes it unclear how long a transient person must stay at a particular location before the reregistration requirement is triggered. Based on the statutory language, defendant asserts that he "could only guess as to whether he was 'regularly residing' at his mother's home." Defendant further complains that it is unclear from the statute whether "moving to a residence" requires actually moving into a residence, as opposed to sleeping outside of the residence. According to defendant, while "[t]he reference to 'addresses' easily could be understood by a person of common intelligence as including sleeping outside any structure that has an address," the language " 'such as a shelter or structure,'. . . would seem to indicate that [the] obligation to re-register is triggered when the homeless person moves into a structure of some kind, as the inclusion of the 'such as a shelter or structure' language would be utterly unnecessary if staying at [a] property 'that can be located by a street address' was sufficient." Based on the statutory language, defendant asserts he "could only guess as to whether the fact that he was present at his mother's home on a regular basis constituted moving to a residence or if the requirement of re-registration applied only if he moved into his mother's home."
In light of the statutory definition of "residence" and the legislative purpose of the transient registration statute, it is reasonably clear that where a registrant "regularly resides" includes any address, regardless of the number of days or nights spent, where the registrant commonly stays or stays on a recurring basis--an address to which the registrant intends to return, as opposed to where one rests or shelters on a single instance during a trip or transient visit. (See Horn, supra, 68 Cal.App.4th at pp. 414-420; People v. McCleod (1997) 55 Cal.App.4th 1205, 1218.) Further, the transient registration statute itself removes any notion that a person must move into a shelter or structure in order to trigger the reregistration requirement. The statute specifically defines a " '[r]esidence' " as one or more addresses "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." (§ 290.011, subd. (g).) The broad definition of residence makes clear the Legislature did not intend to limit the reregistration requirement to transients that move into a shelter or structure located by a street address. This comports with the legislative purpose of the transient registration statute--i.e., to assure that persons convicted of sex offenses requiring registration are readily available for police surveillance at all times. (See Gonzales, supra, 183 Cal.App.4th at p. 37 [the definition of residence is broad, with no limitations as to a set amount of time or time of day for a finding of residence, which is consistent with the objective of § 290.011].)
Defendant's reliance on North is unavailing. In North, the court determined that a former version of the sex offender registration statute did not give transients adequate notice of what constitutes a location that must be separately identified within a jurisdiction, or when movement within a jurisdiction constitutes a change in location. (North, supra, 112 Cal.App.4th at pp. 627, 631-636.) The court held, "[T]he provisions governing changes of 'location' and registration at multiple 'locations' within a jurisdiction [are] unconstitutionally vague." (Id. at p. 624.) The court concluded, "[S]ection 290 does not give transient sex offenders fair notice of what they must do to conform with the registration requirements governing changes of 'location,' " and that "transient offenders can only guess at what is meant by the requirement that they register at every 'location' they regularly occupy in a single jurisdiction. [Citation.] Section 290 fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement." (Ibid.) The North court, however, concluded 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--are not unconstitutionally vague because these requirements "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." (Ibid.)
We are not persuaded that North supports the conclusion that the transient sex offender registration statute is unconstitutionally vague. Most fundamentally, the North court interpreted language that is not at issue in this case. Furthermore, the version of section 290 at issue in North was subsequently amended and is not applicable here. As we discussed ante, we find that the applicable provisions governing reregistration after a change from transient status to residential status are not unconstitutionally vague.
Defendant does not specifically argue that the transient sex offender registration statute is unconstitutional as applied to him. However, even if we construed his brief as making such an argument, the argument lacks merit. Like the defendant in Gonzales, defendant was aware that he needed to register his deceased mother's address--3240 Del Mar Way. There was evidence that he was spending a considerable amount of time at that address, including spending the night. In addition, there was evidence he was told by his parole officer that he was required to register that address. Accordingly, like in Gonzales, "[u]nder any plausible reading of section 290.011 [subdivision] (g)," defendant was required to register the Del Mar Way address "because he was regularly spending a significant amount of time there." (Gonzales, supra, 183 Cal.App.4th at p. 39.) Therefore, as applied in this case, section 290.011 is not unconstitutionally vague. --------
II
Clerical Error
Defendant contends that the trial court's minute order following the jury verdict erroneously states that he was convicted of possession of methamphetamine. The People concede the point, and we agree. Accordingly, we will order the trial court to generate a new minute order reflecting that the jury found defendant not guilty of possession of methamphetamine. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may correct clerical errors in the record].) Because the abstract of judgment does not contain this error, it need not be modified.
DISPOSITION
The judgment is affirmed. The trial court shall generate a new minute order reflecting that defendant was found not guilty of possession of methamphetamine.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.