P. v. Matos

Filed 3/27/06 P. v. Matos CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

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

William F. Fahey, Judge. Reversed.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell, Janet E. Neely, and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Raul Villalon Matos appeals the judgment entered after his conviction by jury of failure to update his sex offender registration annually within five working days of his birthday on May 24, 2001. (Pen. Code, § 290, subd. (a)(1)(D).)^[1] The jury found Matos had six prior convictions within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced Matos to a third strike term of 25 years to life in state prison.

Because Matos was incarcerated from October of 2000 until October of 2001, Matos was not obligated to register within five days of his birthday in May of 2001. Accordingly, we reverse the conviction for insufficient evidence.

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecution's evidence.

The parties stipulated Matos was convicted in 1985 of a felony sex offense which subjected him to the lifetime registration requirements of section 290.

Three separate correctional counselors testified they advised Matos of the registration requirements of section 290 by reviewing with him a five-page registration form. Each counselor advised Matos that section 290 requires registration: (1) within five working days of entering or changing residence within any city, county or city and county in which the offender is located; (2) upon release from incarceration; and, (3) annually within five days of the offender's birthday. These admonitions occurred on August 26, 1999, on January 13, 2000, and on August 2, 2001. On each occasion, Matos was released from prison shortly after the admonition.

Matos registered with a detective of the Los Angeles Police Department on May 19, 1999, and again on May 2, 2000.

Matos lived at the Holiday Lodge Motel on West Third Street from April 25, 2000, until May 23, 2000.

As relevant here, the parties stipulated: (1) Matos was born on May 24, 1957; (2) Matos failed to register as a sex offender after May 2, 2000; and, (3) Matos was in prison from October 12, 2000, until October 12, 2001.

2. Defense evidence.

Matos testified in his own defense that he hears voices and takes numerous medications. Matos believed he had to register on his birthday and recalled that, when he did register, he was told to return on his birthday. Matos's parole officer took him to the Holiday Lodge Motel and helped him pay the rent. After Matos was evicted from the motel, he lived under the freeway or in an abandoned house near Alvarado and Sunset Boulevards. Matos also has stayed with a friend in a room on Beverly Boulevard and has resided in tents on the sidewalk in downtown Los Angeles. Matos did not register within five working days of his birthday in May 2001, because he was in prison from October 2000 until October 2001. When Matos was released from prison in October of 2001, he thought he next had to register on his birthday, May 24, 2002.

3. Verdicts, motion for new trial and sentencing.

The jury convicted Matos of failure to update his registration annually on or about May 31, 2001, in count 2 in violation of section 290, subdivision (a)(1)(D).

The jury also convicted Matos of failure to register in June of 2002 in count 1 in violation of section 290, subdivision (a)(1)(A)), and failure to file a change of address in June of 2002 in count 3 in violation of section 290, subdivision (f)(1). However, prior to sentencing, the trial court granted a new trial with respect to counts 1 and 3 based on People v. North (2003) 112 Cal.App.4th 621. North, which was decided the day the jury reached verdicts in this case, invalidated as void for vagueness section 290, subdivisions (a)(1)(A) and (f)(1) to the extent they used the term â€