P. v. Dennings

Filed 6/13/06 P. v. Dennings CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant was convicted by a jury of assault (Pen. Code, § 240) and failure to register as a sex offender (Pen. Code, § 290, subd. (g)(2)). (Further undesignated section references are to the Penal Code.) He appeals his conviction for failing to register, arguing (1) the trial court erred in denying his motion to suppress a pre-trial statement, (2) the court erroneously instructed the jury on the knowledge element of the offense, (3) the court improperly restricted argument, and (4) the conviction is not supported by substantial evidence. We agree with defendant's second and third points and reverse the failure to register conviction.

Facts and Procedural History

In 1985, defendant was convicted of a misdemeanor sexual offense that required him to register as a sex offender under section 290, subdivision (a)(1). On May 9, 2003, defendant registered at the Sacramento Police Department. On the registration form, he listed his residence address on Golf View Drive, Sacramento, and his telephone number as 916-428-XXXX. In the space provided for concurrent addresses, defendant again listed the Golf View Drive address.

The Golf View Drive address is where defendant and his siblings lived while growing up. In 2003, it was the home of defendant's sister, Barbara Burt. Defendant stayed there on occasion, although he did not have a key to the house. The telephone number at that address was 916-428-XXXX.

On September 21, 2003, defendant was accused of molesting a child at the home of his girlfriend, J.M., on 69th Avenue in Sacramento. Defendant was arrested and taken to the police station. During booking, defendant gave his address on Golf View Drive but his telephone number as 916-399-XXXX.

Defendant was charged with one count each of lewd and lascivious conduct (§ 288, subd. (c)(1)) and failure to register (§ 290, subd. (g)(2)). His motion to bifurcate the charges was granted and defendant was tried first on the lewd and lascivious act charge. The jury found him not guilty of that charge but guilty of the lesser offense of assault (§ 240).

Defendant was thereafter tried on the failure to register charge. The court first denied defendant's motion to suppress his statement to the arresting officer about his telephone number. J.M.'s sister, Y.M., testified that she lived on 69th Avenue for nine years before J.M. asked to move in with her. J.M. moved in with her children and defendant. By September 21, 2003, Y.M. had moved out. Defendant kept clothes and personal property in J.M.'s bedroom. Y.M.'s daughter, S.J., testified that defendant had been living at J.M.'s home for at least two months before September 21, 2003, and kept clothes in J.M.'s bedroom. S.J. also testified that defendant and J.M. had a child together who lived at the residence.

Barbara Burt testified that defendant was living with her in September 2003. However, she admitted that when questioned by police officers on September 21, 2003, she stated defendant had moved out two months earlier and was no longer living with her. Burt explained she had lied to the officers because, at the time, she was angry at defendant for his excessive drinking. Burt testified that, for at least two months, defendant was â€