P. v. Windham

Filed 7/23/07 P. v. Windham CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed as modified.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Charles William Windham of one count of failing to inform law enforcement of his change of address, as required by the sex offender registration statute, and two counts of failing to register as a sex offender. The jury found true the allegation that defendant had previously been convicted of four strike offenses. The trial court sentenced defendant to three consecutive sentences of 25 years to life for a total of 75 years to life.

Defendant raises several errors on appeal. He contends that the accusatory pleading failed to give him notice of the offenses. We conclude that the information comported with due process in that it gave sufficient notice of the charges. Defendant also asserts the trial court failed to instruct the jury that it must find he had actual knowledge of the registration requirements. We agree with defendants claim that the trial court failed to instruct on actual knowledge. However, we find the error was harmless. Finally, defendant complains that sentencing him to three consecutive life terms violates the dual use prohibition as there was only one continuing violation of his failure to inform law enforcement of his change of address. We conclude that imposing a sentence for each count of failing to register did not violate Penal Code[1] section 654.

FACTUAL AND PROCEDURAL HISTORY

In January 1985, defendant was convicted of two counts of forcible rape and two counts of kidnapping against the same victim. Prior to his release from prison, defendant signed a sex offender notification statement in July 1999 acknowledging he understood his registration requirements. In August 1999, defendant moved in with his mother and registered with the Riverside County Sheriffs Department as a sex offender. He reported that he lived at his mothers residence at 23375 Cox Street, Perris, California. In September 1999 he updated his annual registration.

After living for some time at the Cox Street address, defendant moved into a mobilehome at 18815 Alexander Street with his sister and her boyfriend.

In March 2000 defendant moved to Alabama. Around September or October 2001, defendant returned to California and stayed at a property located on Alexander Street. One month later, defendant moved into a travel trailer located at the Cox Street address where he lived consistently through February 2002.

Around July 2002 defendant applied to work as a truck driver with a courier company. On his employment application, defendant listed his residence address as 23375 Cox Street. Defendant was hired and began work as a courier.

Defendant never filled out a registration card for the years 2000, 2001, or 2002, and never informed the parole department that he left California.

When defendants failure to register was discovered, defendant was criminally charged. The matter went to trial and defendant testified in his own defense. He testified that he knew he had to register; he complied with the registration requirements by mailing a change of address form to law enforcement notifying them he was leaving the state. He testified upon his return to California, he had no place to live. To avoid being in violation of the registration requirements, he moved frequently and did not stay in any one place longer than five days. He testified he never lived at the Cox or Alexander addresses; he only rented the property on Cox Street to store his belongings.

DISCUSSION

A. Defendant Had Sufficient Notice That He Was Charged With Failure to Register as a Sex Offender

In count 1 of the information, the prosecution charged defendant with failing to inform the law enforcement agency with a change of address or location outside the jurisdiction. ( 209, subd. (f)(1).) The charge was pled using the following language:

The District Attorney of the County of Riverside hereby accuses CHARLES WILLIAM WINDHAM of a violation of Penal Code section 290, subdivision (f), subdivision (1), a felony, in that on or about December 1999, through January 2000, in the County of Riverside, State of California, he was a person required to register as a sex offender pursuant to Penal Code section 290, based on a felony conviction for RAPE BY FORCE OR FEAR on February 22, 1985, in the County of Riverside, and failed to inform law enforcement where he was last registered within 5 working days of his change of residence address or location, whether within the jurisdiction in which he was currently registered or to a new jurisdiction inside or outside the state.

In counts 2 and 3, the prosecutor alleged the following in the information:

For a further and separate cause of action, being a different offense from but connected in its commission with the charge set forth in [counts 1 & 2] hereof, the District Attorney of the County of Riverside hereby accuses CHARLES WILLIAM WINDHAM of a violation of Penal Code section 290, subdivision (a), subsection (1), subparagraph (A), a felony, in that on or about [September 2001 & August 2002], in the County of Riverside, State of California, he as a person required to register as a sex offender pursuant to Penal Code section 290, did fail to register with law enforcement within five (5) working days of coming into or changing his residence or location within any city, county, or campus in which he temporarily resided or if he has no residence, where he is located, based on a felony conviction for RAPE BY FORCE OR FEAR, on February 22, 1985, in the County of Riverside.

Defendant contends that the information insufficiently pled counts 1, 2, and 3, as the information did not give him notice of the willful element. He claims that the information failed to allege that either he committed a willful violation of the registration requirement or that he had actual knowledge of the registration requirements. He also alleges that correctly citing to section 290 did not cure the violation. We disagree.

The Sixth Amendment requires an accused to be informed of the nature and cause of the charges against him. (People v. Gallego (1990) 52 Cal.3d 115, 189.) A charging document must provide the defendant with notice of the offense charged. ( 952.) The charges must state that the accused has committed some public offense, and may be phrased in the words of the enactment describing the offense or in any other words sufficient to afford notice to the accused of the offense charged, so that he may have a reasonable opportunity to prepare and present a defense. (People v. Fitzgerald (1997) 59 Cal.App.4th 932, 936.) Errors, mistakes, or differences from the form or mode for pleading prescribed by the Penal Code do not render the pleading invalid unless they actually prejudiced the defendant of a substantial right. ( 960.)

The notice requirement is satisfied when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial. (People v. Ramirez (2003) 109 Cal.App.4th 992, 999.) In addition to the initial accusatory pleading, the preliminary hearing, the information containing the formal charges, and the pretrial discovery procedures usually provide sufficient notice of the nature of charges. (People v. Jones (1990) 51 Cal.3d 294, 317.)

If the information had failed to state the offense so as to adequately notify him of the charges he was accused of, defendant was entitled to demur to it. ( 952 & 1004, subd. 2.) As he did not demur to the information below, his failure to demur or object at trial waives the issue on appeal. The well-established rule is that failure to demur on the ground that a charging allegation is not sufficiently definite waives any objection to the sufficiency of the information. [Citations.] (People v. Holt (1997) 15 Cal.4th 619, 672.)

Even if the matter were not waived, we find that the information provided defendant sufficient notice of the charges to allow him to prepare and present a defense. The information alleged that defendant failed to register as a sex offender within five working days. That language was sufficient to put him on notice of the offense with which he was charged, even without stating all of the elements of the latter section. (See, e.g., People v. Roberts (1953) 40 Cal.2d 483, 486 [violation of Health & Saf. Code, 11500]; People v. Benenato (1946) 77 Cal.App.2d 350, 362 [pandering].)

We conclude that the language of the pleading was sufficient to put the defendant on notice of the charges he was accused of.

B. Failure to Instruct on Section 290s Actual Knowledge Requirement Was Harmless Error.

Defendant advances several arguments to support his contention that the trial court erroneously instructed the jury on the elements of section 290. Among them, defendant asserts that the actual knowledge element of the section 290 offense was omitted from the instructions. Thus, the instructions did not require the jury to find that he had actual knowledge of the registration requirements. By giving CALJIC Nos. 1.20 (definition of willfully), and 3.30 (concurrence of act and general criminal intent), the trial court misled the jury into believing it could convict him if it found he had only general criminal intent.

He argues these instructional errors prejudiced him because they: (1) did not pinpoint his lack of knowledge defense, (2) allowed the prosecutor to erroneously argue defendants intent to omit the act was sufficient, rather than prove the necessary mens rea that defendant intended to violate the law, and (3) confused the jury on the distinction between intent and knowledge. Finally, he contends his counsel rendered ineffective assistance when he acquiesced in giving CALJIC Nos. 1.20 and 3.30 and failed to request correct instructions on actual knowledge.

In its response, the prosecution asserts that the issue was waived on appeal by failing to object below. We disagree. Where an instructionerroneously defines the elements of an offense, the error is not waived by trial counsels failure to object, as the trial court has a sua sponte duty to instruct the jury properly on that subject. (See People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Frazer (2003) 106 Cal.App.4th 1105, 1116, fn. 5.)

A sex offender is guilty of violating section 290 if he willfully violates the registration or notification provisions. (People v. Garcia (2001) 25 Cal.4th 744, 751 (Garcia).) In order to willfully violate section 290, a defendant must actually know he has a duty to register. (Garcia, at pp. 752, 754.) The word willfully implies a purpose or willingness to make the omission. [Citation.] (People v. Barker (2004) 34 Cal.4th 345, 351.) Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. (Ibid.) Therefore, a jury should be instructed that a willful failure to register requires actual knowledge of the duty to register (Id. at p. 359, citing, Garcia, at p. 752.)

The trial court below gave CALJIC Nos. 1.20 and 3.30. It was error to give these instructions in a section 290 prosecution as they omit the element of actual knowledge of the duty to register. (People v. Barker, supra, 34 Cal.4th at pp. 360-361 [CALJIC No. 3.30]; Garcia, supra, 25 Cal.4th at pp. 753-754 [CALJIC No. 1.20].)

A jury instruction omitting or erroneously defining an element of the charged offense is subject to the Chapman[2] standard of review. (Garcia, supra,25 Cal.4th at pp. 754-755.) We conclude that the error was harmless beyond a reasonable doubt because the defendant testified that he knew he had to register. (Id. at p. 755.) Contrary to defendants claim on appeal that his defense was lack of knowledge, it was, in fact, the opposite: he conceded the issue of actual knowledge.

Defendant testified that he knew he had to register and, in fact, did comply with the registration requirements by mailing a change of address form to law enforcement notifying them he was moving out of state. He argued that he did not have any duty other than mailing them the change of address. If law enforcement did not receive his change of address or lost the information, it was not his fault and should not result in criminal liability. He also argued that upon his return to California, he never stayed in one particular locale for more than five days, and therefore did not have to register.

The convictions strongly imply that the jury rejected his defense; it must have found that the defendant did not inform law enforcement of his change of address and failed to register when he stayed in a particular residence at the two separate time frames alleged in the information.

Because there was no prejudice to defendant, there could be no ineffectiveness of counsel. In the absence of prejudice, defendants claim of ineffective assistance of counsel also fails. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

C. Imposing a Sentence on Each Count of Failure to Register Did Not Violate Section 654.

Defendant complains that he wrongfully received three consecutive life terms for failing to register. He claims there was insufficient evidence to find he harbored a separate intent and objective for each separate charge because the evidence showed only one continuing violation of his failure to inform law enforcement of his change of address. He argues that the three counts arose out of a single, indivisible course of conduct with the sole intent of evading law enforcement. Because imposing multiple punishments for a single act violates section 654, he asserts this court must stay the sentence on two of the lesser counts.

Section 654, subdivision (a), prohibits multiple sentences for the same act or omission. It precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor. [Citations.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) [W]hether defendant harbored a single intent within the meaning of section 654 is generally a factual one [and] the applicability of the statute to conceded facts is a question of law. (People v. Harrison (1989) 48 Cal.3d 321, 335.)

When a convicted sex offender fails to notify the former jurisdiction of his new location ( 290, subd. (f)(1)) and fails to register his current address in the new jurisdiction ( 290, subd. (a)(1)(A)), he could be prosecuted for each crime separately. (People v. Britt (2004) 32 Cal.4th 944, 951.) However, whether a defendant could be punished for each offense depends on defendants objective when he has violated both subdivision (f) and subdivision (a). (Id. at p. 952.)

In this instance, defendant failed to notify law enforcement in California that he was leaving the state and moving to Alabama. His obligation to report the change was triggered five days after he left. Defendant again failed to notify law enforcement when he relocated back into California in September 2001 and lived in the City of Perris, moving in between two addressesone at 23375 Cox Street and one at 18815 Alexander Street. Again, his obligation to register at any address was triggered five days after he came back to California. In August 2002, defendant applied for a job as a truck driver for a courier service; on his job application he listed his residence as 23375 Cox Street. Defendants obligation to register was triggered within five days of his changing his residence to Cox Street in 2002. The last time defendant filled out a registration card was in August 1999. He failed to register in 2000, 2001, or 2002.

Defendants lapse in notifying law enforcement of his several moves and his failure to inform any agency for a whole year between each offense shows three separate objectives to avoid surveillance by law enforcement. Defendants having multiple objectives is more similar to People v. Meeks (2004) 123 Cal.App.4th 695 (Meeks), where the defendant failed to register on his birthday and upon his change of locale, which involved two separate triggering events. This case is dissimilar to Britt, supra, 32 Cal.4th at page 953. In that case, there was only one triggering eventthe accuseds single move beginning in one county and ending in another county. If more than one move occurred, each triggers a separate registration requirement. (Meeks, supra, at p. 705.)

D. The Abstract of Judgment Should be Corrected to Reflect the Proper Dates.

The abstract of judgment indicates that counts 1, 2 and 3 were all committed in the year 2002. Defendant contends, and the People concede, that the abstract is incorrect. Count 1 was committed in 2000, count 2 was committed in 2001, and count 3 was committed in 2002. We agree.

DISPOSITION

The judgment is modified as follows: The trial court is directed to correct the abstract of judgment to reflect that count 1 was committed in 2000, count 2 was committed in 2001, and count 3 was committed in 2002. The trial court is further directed to prepare an amended abstract of judgment and to forward it to the appropriate prison authorities. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ GAUT

J.

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[1] All further statutory references will be to the Penal Code unless otherwise indicated.

[2] Chapman v. California (1967) 386 U.S. 18.