Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-077364
HULL, J.A jury convicted defendant Warren Granard Watford of failing to register with local law enforcement as an out-of-state sex offender. (Pen. Code, §§ 290, 290.005; undesignated statutory references that follow are to the Penal Code.) The trial court sustained an allegation that defendant had been convicted of a “strike” within the meaning of section 1170.12, subdivision (a) through (d) and section 667, subdivision (b) through (i). The trial court sentenced defendant to 32 months in state prison, which was the low term of 16 months doubled for the strike.
On appeal, defendant argues the trial court should have granted a motion to suppress because the police did not have grounds to detain him, there is insufficient evidence to prove he was aware of his obligation to register and willfully failed to fulfill it, either the court or defense counsel had the duty to provide an instruction defining the meaning of “reside” for purposes of the registration statute, and the court failed to credit him with one day of custody credit. We agree with the last contention only and affirm the judgment with directions.
We will omit a separate statement of the facts underlying the motion to suppress and the circumstances of the offense. We instead incorporate them where relevant in the Discussion.
Discussion
I
The Motion to Suppress
At the beginning of trial, defendant made a motion pursuant to section 1538.5 to suppress evidence obtained following, in his view, an illegal detention.
The sole witness on the motion to suppress was the arresting officer, Timothy Jaeckel.
At 2:30 a.m. on February 6, 2008, Officer Jaeckel was in uniform in his patrol car. Defendant was walking on the sidewalk as the officer drove up a main street in downtown Lincoln. Never having seen defendant before, the officer pulled over to the curb and parked behind him. Although walking at that time of morning was not illegal, it was unusual and the officer wanted to make speak to defendant if he consented to do so. Jaeckel did not turn on his lights or siren, and did not use his spotlight. The officer got out of his car and approached defendant. He said “hello,” and asked defendant what he was doing. The office told defendant he was free to go at any time, and it appeared to the officer that defendant spoke with him voluntarily.
The officer asked defendant for identification, telling him this was for the officer’s safety in making sure he was not an armed felon. Defendant did not have identification, but gave Jaeckel his name and birth date. The officer used his hand-held radio to forward this information to dispatch to check for outstanding warrants. While this was taking place, defendant mentioned he had come to California from Massachusetts in December 2007 on a visit to help his son with family issues. The officer let dispatch know this as well. Dispatch responded promptly that defendant was clear in California; it took somewhere between 20 and 30 minutes for dispatch to determine that defendant had possible registration issues from Massachusetts, where he had a conviction involving a sex offense against a child.
At this point, the officer (who had been joined by another officer) told defendant that he could not leave because there were possible problems with his failure to comply with Massachusetts registration requirements. As the officer had confirmed that defendant was also not registered in Lincoln, he arrested him. Defendant told the officer he was a transient when asked for an address. About 40 minutes elapsed from the time of the initial contact to the arrest.
Defendant contends the officer’s approach and questioning amounted to a detention because it took place on an apparently deserted street and a reasonable person would not have felt free to leave or to decline the officer’s requests. (See Florida v. Bostick (1991) 501 U.S. 429, 434, 436 [115 L.Ed.2d 389].) Based on this premise, he asserts it was an illegal detention because the officer did not have reasonable and articulable suspicions to conduct it (Terry v. Ohio (1968) 392 U.S. 1, 21-22 [20 L.Ed.2d 889]) and unduly prolonged it (see People v. Williams (2007) 156 Cal.App.4th 949, 959-960). He relies on two cases that we find distinguishable.
In People v. Roth (1990) 219 Cal.App.3d 211, officers came across the defendant in a deserted parking lot in the middle of the night, at which time they trained their spotlight on him, got out of the patrol car, and told him to come over to them. (Id. at p. 213.) The court did not think a reasonable person would feel free to go under these circumstances. (Id. at p. 215.) In People v. Jones (1991) 228 Cal.App.3d 519 (Jones), a patrolling officer observed a suspicious exchange in a group of three people who were standing at a corner at night; he diagonally parked the car behind them on the wrong side of the street (blocking traffic), got out of the car, and told the defendant to stop. (Id. at pp. 521-522.) “A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic. Clearly, appellant was detained.” (Id. at p. 523.)
There are no similar displays of authority in the present case, where a single officer stopped and parked his car in ordinary fashion, did not display lights, sirens, spotlights, or any other indicia of authority over defendant, and assured him explicitly as he approached him that he was free to go (rather than demanding he approach or stay where he was). Instead, this case is akin to People v. Terrell (1999) 69 Cal.App.4th 1246. Two officers approached a defendant, who was sitting on a park bench in the afternoon, and asked for identification (which revealed an outstanding warrant and drugs on the defendant’s person when they arrested him). (Id. at p. 1251.) The court found that nothing in the officers’ words or conduct indicated that a reasonable person would not feel free to go. (Id. at p. 1252.) Contrary to defendant’s argument, nothing about the decisions in these three cases rested on the time of day or the isolated circumstances of the encounter. Rather, the focus was on the conduct of the officer.
Having found the interaction was not a detention but was a consensual encounter for which an officer does not need to provide justification (Jones, supra, 228 Cal.App.3d at pp. 522-523), we do not have any need to consider defendant’s claims that the detention lacked such justification or was unduly prolonged.
II
Sufficiency of the Evidence
The facts at trial regarding the manner in which defendant came to the attention of the Lincoln police as an unregistered sex offender in February 2008 parallel those we have related from the suppression motion. We need not repeat them here.
In December 2007, two Lincoln police officers had gone to a home on Darien Court in Lincoln to serve an arrest warrant on a person living there. (The subject of the warrant was an unspecified person other than the homeowner or defendant.) Although they did not know defendant at that time, he was standing on the front porch. The homeowner, who lived in the three-bedroom house with her teenage daughter and toddler grandson (each with their own bedroom), introduced defendant to one of the officers with whom she was familiar. Defendant mentioned he was from Boston and was staying with the homeowner (whom he had met 25 years ago in Massachusetts, and with whom he had a 22-year-old son) to deal with some family issues. Defendant also mentioned undergoing a medical procedure in Sacramento.
On the night of defendant’s arrest in February 2008, the two officers responded as backup. They recognized defendant, who shook hands with the officer with whom he had previously conversed.
As noted, defendant was not previously registered in Lincoln. At the jail after his arrest, he filed a registration form indicating his intent to reside at the Darien Court home.
The prosecutor introduced a copy of a change-of-address form defendant had filed with Social Security, listing the Darien Court address as his mailing address for his check effective December 11, 2007. The prosecutor also placed into evidence a copy of defendant’s registration form as a sex offender in Massachusetts, which he executed in April 2007. The form advised him that he was “required to immediately contact and advise of your presence, the appropriate authorities in any other state in which you locate yourself for the purpose of residence.” (Emphasis added.)
The homeowner testified that defendant had spent most of his life in Massachusetts and had never come to California before. She had been having family problems with their son and had asked him to come help. He arrived by bus with one suitcase, and initially, they did not believe he would be in California for more than a week or two. Defendant slept on her couch and received his mail at her home. He would be gone from the residence for days at a time. Shortly before his arrest, defendant had asked her to check on the price of tickets to Massachusetts.
Defendant argues that the evidence is insufficient to prove his actual knowledge of the requirement that he register upon coming to California, and therefore fails to prove the necessary willful failure to register. He relies on his intent to return to Massachusetts after a stay of indeterminate length to assist his son with legal difficulties, his use of the local address only for mail and occasional overnight stays, his purported request to investigate the costs of return transportation to Massachusetts shortly before his arrest, and the forthcoming nature of his behavior when the police stopped him.
A defendant must have actual knowledge of the duty to register as a sex offender; mere notice is insufficient to establish the necessary “willfulness requirement.” (People v. Garcia (2001) 25 Cal.4th 744, 747, 752.) However, proof of notice is a sufficient basis for a jury to infer the necessary actual knowledge, absent any evidence to the contrary. (Id. at pp. 752, 755 [failure to instruct on element of actual knowledge harmless where jury necessarily rejected only evidence that notice did not provide actual knowledge—defendant’s claim that he did not read it].)
In the present case, defendant had actual knowledge from Massachusetts registration authorities that upon locating himself in another state for the purpose of residence he must immediately advise the appropriate authorities in that state, at which point defendant would have learned that even his initially anticipated visit of two weeks triggered the requirement to register under California law. This would have been so even if he did not remain at any particular location in California for the two-week period. (See, People v. Williams (2009) 171 Cal.App.4th 1667, 1672-1673 [to reside in jurisdiction for purposes of statute does not require establishing a particular place of residence in the jurisdiction].) Defendant presented only circumstantial evidence, in the form of his conduct, that the Massachusetts notice did not impart actual knowledge of his need to report to California authorities immediately on his arrival (and thereby obtain actual knowledge of the time frame in which he needed to register in California). However, this evidence was equivocal. A rational jury could also find that his conduct was consistent with a person aware of the requirement at least to contact California authorities immediately upon his arrival in the state, but indifferent to it. The evidence was sufficient to support the verdict on this element.
III
Instruction on the Meaning of the Word “Reside.”
Defendant asserts that the trial court had a duty to instruct the jury sua sponte on “the meaning of the term ‘reside’ as used in the registration statute” because the term has varied meanings depending on the statutory context. He faults the reasoning in People v. McCleod (1997) 55 Cal.App.4th 1205 (McCleod) to the contrary. In the alternative, he contends trial counsel was ineffective for failing to request the court to instruct on the meaning of reside.
McCleod found that the objective of the statute required that its use of residence not be deemed synonymous with the legal concept of domicile. (McCleod, supra, 55 Cal.App.4th at p. 1217.) The fluid concept of residence is commonly understood to mean something more than merely passing through a jurisdiction or being present for only a limited visit, and therefore does not have any technical meaning requiring a court sua sponte to define it further. (Id. at pp. 1217-1219.) People v. Horn (1998) 68 Cal.App.4th 408 affirmed this interpretation of the statute as meaning any presence in a jurisdiction for more than a “brief, passing amount of time” (id. at p. 417) that is longer than the “limited time period specified in the statute” (id. at p. 418 [approving trial court’s special instruction]).
Defendant invokes People v. Cluff (2001) 87 Cal.App.4th 991, 1003, which cited McCleod in asserting that a four-month stay in Utah did not invalidate the registered status of his residence in California. But that case did not involve the exact issue now before us. In short, the trial court did not have a duty to instruct further on the meaning of reside sua sponte.
As for defendant’s contention that trial counsel was ineffective for failure to propose further instructions on the definition of reside, it is reasonable to conclude counsel would have thought it a frivolous action in light of this authority that finds the term readily understandable, and therefore this cannot establish ineffective assistance of counsel on direct appeal. (People v. Riel (2000) 22 Cal.4th 1153, 1202; People v. Pope (1979) 23 Cal.3d 412, 426.)
IV
Custody Credits
Defendant maintains that the trial court miscounted his days of actual custody between February 6 and September 26, 2008 as only 233 days, when it was in fact 234 days. This does not affect his conduct credits, which are 116 days regardless.
Other than note that we have the discretion to disregard this claim because defendant did not tender it to the trial court in the first instance (People v. Mendez (1999) 19 Cal.4th 1084, 1101 [Court of Appeal not required to consider custody credits in first instance when coupled with other issues]; People v. Acosta (1996) 48 Cal.App.4th 411, 427 [Court of Appeal may consider such issue when coupled with others]), the People do not object to giving defendant an additional day of credit. We grant the requested relief.
Disposition
The judgment is affirmed. The trial court is directed to prepare an amended abstract of decision awarding defendant an additional day of custody credit and forward it to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., ROBIE, J.