P. v. Wicker
Filed 11/6/13 P. v. Wicker CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANDRE WICKER,
Defendant and
Appellant.
2d Crim. No.
B243616
(Super. Ct.
No. MA055805)
(Los
Angeles County)
Andre Wicker appeals
from the judgment following his conviction by jury of failure to register as a
sex offender (Pen. Code, § 290, subd. (b)).
The trial court sentenced him to three
years in state prison. Appellant challenges the sufficiency of the
evidence to support his conviction, and contends the court committed
prejudicial error by permitting read back of a
misstated the requisite intent for a failure to register. He further claims he is entitled to additional
days of presentence credit, and respondent correctly concedes the point. We
shall modify the judgment accordingly.
In all other respects, we affirm the judgment.
Factual and
Procedural Background
Appellant registered as
a sex offender for many years, beginning in 2002. He first registered with Ilene Anderson, at
the Los Angeles County Sheriff's Department (LASD) Lancaster
station. Anderson
met with him on many other occasions through 2011. On each occasion, Anderson
explained the registration requirements to him, using a form which describes
each requirement. Relevant excerpts from
the form she used in 2010 follow: "My
responsibility to resister as a sex offender is a lifetime requirement." "Upon coming into, or when changing my
residence address within a city and/or county in which I am residing, I must
register or re-register in person within five (5) working days with the law enforcement
agency . . . ." "If I change
my registered address . . . I must inform the last
registering agency . . . within five (5) working days before or after I leave."
(Ibid.) "If I have more than one residence
address at which I regularly reside . . . I must register
in person, within five (5) working days at each address with the law
enforcement agency having jurisdiction over such residence." "If I no longer reside at a registered
address I must inform . . . the registering agency having jurisdiction over
that address within five (5) working days before or after I leave." Each time he met with Anderson,
appellant signed a statement acknowledging he "read, understood and
initialed each registration requirement."
In registering with Anderson,
appellant often reported he resided at 817 Landsford
Street, in Lancaster,
the residence of his mother and stepfather, Christine Williams-Thomas and
Clarence Thomas (Landsford residence). On
May 19, 2011, he registered
with the Las Vegas Metropolitan Police Department (LVMPD). Sharon Roberson of LVMPD processed his
registration. She told appellant he must
advise LVMPD within 48 hours of any change in his residence. He did not contact Roberson after May 19, 2011. Appellant last contacted Anderson of LASD on December 6, 2011, when he telephoned
and said he had moved to Las Vegas. Anderson
retired from LASD in March 2012. Melissa
Dorsey of LASD then processed sex offender registrations in Lancaster. Appellant never registered with her.
On April 3, 2012, LASD Deputies Alex Vallozzi and
Cesar Huerta conducted a registration compliance check at the Landsford
residence. They found Thomas sitting
outside and asked him about appellant's location. Appellant appeared at the front door, and
Huerta asked if he was going to register.
He said he was going to register "as soon as possible." Thomas and Williams-Thomas testified appellant
often went to Nevada for a few
days and returned to the Landsford residence. Thomas testified appellant lived at the
Landsford residence from January through early April 2012. Appellant did not testify or call any
DISCUSSION
Appellant contends there
is not sufficient evidence to support his failure to register conviction in
violation of section 290, subdivision (b).
We disagree.
In reviewing the sufficiency
of the evidence, we review the entire record in the light most favorable to the
prosecution "to determine whether it contains evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find
the defendant guilty beyond a reasonable doubt." (People
v. Silva (2001) 25 Cal.4th 345, 368.) We do not resolve credibility issues or
evidentiary conflicts, and presume in support of the judgment the existence of
every fact the jury could reasonably have deduced from the evidence. (People
v. Boyer (2006) 38 Cal.4th 412, 480.)
A reversal is unwarranted unless there is no substantial evidence to
support the finding under any hypothesis whatever. (People
v. Zamudio (2008) 43 Cal.4th 327, 357.)
Appellant claims there
is not sufficient evidence to support his failure to register conviction
because there is no evidence he knew he was required to "reregister in Lancaster
or that he willfully failed to reregister in Lancaster."
He also claims he did "not cancel
or abandon his registration in Lancaster
but maintained registration in two locations." The record belies his claims. Appellant repeatedly acknowledged in writing
that he understood the registration requirements. He acknowledged he was required to register
when he moved into a city or county, within or outside California,
and upon moving, to notify the law enforcement agency of his leaving. Anderson
testified that appellant called the LASD Lancaster station, in December 2011,
and reported he had moved to Las Vegas. He registered in Nevada
on May 19, 2011. Appellant returned to Lancaster
sometime during the first months of 2012 but did not register in California. Substantial evidence supports the jury's
finding that appellant knowingly and willfully failed to register in 2012.
No
Prejudice Resulted From the Reading
of Closing Argument to the Jury
Appellant contends the
trial court committed prejudicial error by allowing read back of a closing
argument in which the prosecutor misstated the requisite intent for a failure
to register. We disagree.
Background
During its deliberations,
the jury sent several questions to the trial court. In response, the court allowed the prosecutor
and defense counsel to present no
more than ten minutes of additional argument to address the issues raised by
the jury. The jury later asked to hear
the additional arguments again. The
court granted its request.
Immediately after the
reporter read back the additional arguments, the court admonished the jury as
follows, regarding an error in the arguments: "One other clarification or admonition I
do want to give all the jurors. I
believe there was some mention made about this being a strict liability
crime. That's inaccurate. I want to refer you to page 8, it is CALCRIM
1170, which defines all of the elements of this offense. And element 3 discusses in detail the
knowledge requirement."
The trial court acted
within its discretion in granting the jury's request for a read back of the additional
closing arguments. (People v. Sims (1993) 5 Cal.4th 405, 452-453, overruled on another
ground in People v. Storm (2002) 28
Cal.4th 1007, 1031-1032.) Appellant
argues the read back was prejudicial because the prosecutor's additional
closing argument misstated the requisite intent. We disagree.
The trial court properly called the prosecutor's misstatement to the
attention of jurors and directed them to the instruction which correctly
described the requisite intent. (
of law in closing argument not prejudicial where the court "properly refocused
the jury on the relevant mental state"].)
Appellant argues he is
entitled to 75 additional days of presentence conduct credit. Respondent agrees in large part, but
correctly asserts appellant is entitled to 74 additional days of such credit. The court awarded 219 days of presentence credit,
including 147 days of actual custody credit, and 72 days of conduct credit. Under the version of section 4019 applicable
to his sentence, appellant is entitled to receive two days of conduct credit
for every two days of actual presentence custody. (§ 4019, subd. (f)) ["It is the
intent of the Legislature that if all days are earned under this section, a
term of four days will be deemed to have been served for every two days spent
in actual custody.]") Appellant was
remanded on April 3, 2012, and committed to state prison on August 27, 2012. Thus, he served 147 days of presentence
custody between and including those dates, and he is entitled 146 days of
presentence conduct credit, for a total of 293 days of presentence credit. We will modify the judgment accordingly.
DISPOSITION
The judgment is modified
to award appellant 293 days of presentence credit: 147 days for actual custody and 146 days for
conduct. (§ 4019.) The trial court shall amend the abstract of
judgment accordingly and transmit a certified copy to the
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Lisa
Chung, Judge
Superior
Court County of Los Angles
______________________________
Marta I. Stanton, under
Appointment by the Court of Appeal, for Defendant and Appellant André Wicker
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Blythe J. Leszkay, Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
Code unless otherwise stated.
