P. v. Johnson

Filed 11/12/08 P. v. Johnson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Charles D. Sheldon, Judge. Affirmed.

Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Gregory Wayne Johnson appeals from the judgment entered following his conviction for failing to update his registration as a sex offender, contending

there is insufficient evidence to support the conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Johnson was charged by information filed June 12, 2007 with one count of willful failure to annually update his registration as a sex offender within five working days of his birthday (Pen. Code, former  290, subd. (a)(1)(D)).^[1] The information also specially alleged Johnson had suffered felony convictions for attempted rape and attempted sexual assault, which are serious or violent felonies within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served one separate prison term for a felony within the meaning of section 667.5, subdivision (b).

2. The Trial Evidence

a. The Peoples case

Johnsons date of birth is March 7, 1957. He had been convicted in Arizona of two felony sex offenses: attempted rape in 1978 and attempted sexual assault in 1983. After Johnson was released on parole and relocated to Long Beach, California, he complied with section 290 by registering as a sex offender with the Long Beach Police Department. Johnson also acknowledged in writing he was obligated to annually update his registration information within five working days of his birthday.

Johnson consistently complied with the registration-update requirement while residing in Long Beach. Documentary evidence and testimony established Johnson had updated his sex offender registration information at various times from March 14, 2001 through November 7, 2005.^[2] However, beginning in 2006 Johnson failed to update his registration within five working days of his birthday. Long Beach Police Officer Barry Miller was unsuccessful in his efforts to locate Johnson at his last known addresses, and the district attorneys office was contacted to file a felony complaint.

b. The defense case

In 2005 Johnson informed his parole agent, Mike McClemore, of his desire to visit his sick father in Kansas. On December 30, 2005 McClemore issued an interstate travel permit addressed to the Kansas Department of Corrections allowing Johnson to travel to Kansas. Johnson was to return to Long Beach no later than January 12, 2006. McClemore had no further contact with Johnson after December 30, 2005, but he later learned Johnson did not return to California, was arrested for cocaine possession on January 18, 2006 and was admitted to a Kansas hospital on January 22, 2006. When Johnson failed to return to California after his release from the hospital, McClemore had a nationwide warrant issued for Johnsons arrest for absconding from parole. Johnson was arrested on the warrant in Kansas on November 7, 2006 and was extradited to California.

Johnson testified in his own defense. He admitted having previously suffered felony convictions for attempted rape and attempted sexual assault in Arizona. Johnson acknowledged he was aware of his obligation to update his registration information as a sex offender with the Long Beach Police Department within five working days of his birthday. He testified to having consistently updated his registration information for eight years prior to 2006. Johnson left California in December 2005 with the intention of returning; he traveled to Kansas solely to see his sick father. Johnson explained he failed to return to California by January 12, 2006 because he had been hospitalized after informing police he was unable to breathe following his arrest for cocaine possession. Johnson was hospitalized for six months. Upon his release from the hospital, which he said was probably in June or July 2006, Johnson stayed with a relative in Kansas for two to three weeks until he suffered a heart attack and was re-hospitalized for four months. Johnson never attempted to contact the Long Beach Police Department while in Kansas. Johnson was subsequently arrested on the outstanding warrant and spent two months in custody in Kansas before being extradited to California in October 2006.

Johnson insisted each time he was released from the hospital he wanted to return to California to update his registration as a sex offender, but his physicians advised against the trip for health reasons. According to his testimony, Johnson was either in custody, hospitalized or staying with a relative while in Kansas the entire time he was out of the state. Johnson reported he had telephoned his parole agent, McClemore, after he was released from his initial hospital stay and said he believed he did not have to contact the Long Beach Police Department about updating his registration because he was just going to see his father. Johnson testified his education was limited; he could neither read nor write although he had learned to sign his name. Long Beach Police Department personnel had assisted him in updating his sex offender registration information during the previous eight years.

3. The Verdict and Sentence

The jury found Johnson guilty of failing to update his registration as a sex offender. In bifurcated proceedings the trial court dismissed one of the prior strike convictions pursuant to section 1385 and found there was insufficient cause to consider the second felony a strike. Johnson was sentenced to the middle term of two years in state prison. Imposition of the one-year prior prison term enhancement was stayed.

DISCUSSION

1. Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (Bolin, at p. 331.)

Substantial evidence in this context means evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [[W]hen the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)

2. Substantial Evidence Supports Johnsons Conviction

Under both former section 290, applicable in this case, and the current sex offender registration law, a convicted sex offender has a lifetime obligation to register with a local law enforcement agency. At the time of Johnsons offense in 2006, former section 290, subdivision (a)(1)(D), provided, 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 [a local law enforcement agency]. Former subdivision (g)(2) provided a person subject to the registration provisions of former section 290 who willfully violated either the initial registration or update requirement was guilty of a felony. The word willfully, when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate the law or to injure another or to acquire any advantage. ( 7, subd. 1; see People v. Johnson (1998) 67 Cal.App.4th 67, 72.)

There is no dispute Johnson failed to update his sex offender registration information within five working days of his March 7, 2006 birthday. The only issue at trial was whether the failure to do so was willful. Acknowledging his better course of action would have been to contact his parole agent and the Long Beach Police Department to explain his failure to return to California, Johnson nonetheless argues the record establishes circumstantially his failure to comply with former section 290, subdivision (a)(1)(D), was inadvertent. Johnson insists, given his lengthy history of updating his registration information in a timely fashion, his request for a travel permit before leaving California, his prolonged hospital stays in Kansas and medical advice against traveling to California, his limited intellectual functionality, and his telephone call to his parole agent to advise him he was still in Kansas, it was unreasonable for the jury to have found he purposely failed to update his registration information.

Johnsons arguments are for a jury, not an appellate court. We may not invade the province of the fact finder by reweighing the evidence, reevaluating the credibility of witnesses or substituting our own conclusions for the jurys findings. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; see People v. Diaz (1992) 3 Cal.4th 495, 541.) From the evidence presented at trial, a reasonable fact finder could have concluded beyond a reasonable doubt Johnson willfully failed to update his registration information, particularly in view of the fact he was living with a relative for at least two or three weeks in the summer of 2006 between hospital stays and made no effort during that time to contact the Long Beach Police Department to explain his noncompliance. The evidence, therefore, is sufficient to support the conviction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

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^[1] Statutory references are to the Penal Code. Former section 290 was repealed and replaced by the Sex Offender Registration Act, effective October 13, 2007 (Stats. 2007, ch. 579, 8, p. 3741). In this opinion we refer to the version of former section 290 in effect at the time of Johnsons offense.

^[2] Johnson completed by hand form SS-8102S, entitled Sex Registration/Change Of Address/Annual or Other Update, on March 14, 2001, April 5, 2001, October 1, 2001, July 14, 2004 and November 7, 2005.