Filed 5/30/17 P. v. Sullivan CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN THOMAS SULLIVAN,

Defendant and Appellant.
C081500

(Super. Ct. No. 62138558)




Defendant John Thomas Sullivan--a registered sex offender--was told to leave by his landlady and locked out of the house. He did not reregister with law enforcement within the required five-day period. A jury found him guilty of a felony sex offender registration violation, and the trial court found he had a prior strike conviction and four prior prison terms. (Pen. Code, §§ 290.013, 667, subds. (b)-(i), 667.5, subd. (b).) The court sentenced defendant to prison for 10 years, and defendant timely filed this appeal.
On appeal, defendant contends no substantial evidence supports his felony conviction, trial counsel ineffectively conceded he had knowledge of his duty to reregister, and the trial court improperly refused a requested instruction regarding landlord-tenant law in his effort to show his eviction was unlawful. We shall affirm.
FACTS
The parties stipulated that defendant had been convicted of a sex offense which required him to register as a sex offender.
Officer Scott Mann’s duties included checking on sex registrants in Auburn, and he knew defendant. On May 7, 2015, he went to defendant’s registered address on Chana Drive, and saw a note on the door stating defendant no longer lived there. He called the owner, Natalie Herman, who told him that the day before she had changed the locks and that defendant was no longer welcome to live there. She had spoken to Mann the day before to tell him she did not feel safe, and did not want defendant living there. Mann called defendant and left four voice messages for him over the next two days, but received no reply. Mann had called defendant before and in Mann’s experience defendant consistently answered his phone or returned messages left thereon.
Monique Villere, Herman’s friend, testified that for some time Herman had complained about defendant and had asked him to leave, but he would not do so. On May 6, 2015, Villere and a friend went to help Herman get defendant out of the house, and she had a locksmith change the locks. Defendant arrived, saw the locks being changed, “was compliant,” and gathered some of his possessions. Villere told defendant he was not to come back, and put the note on the door (on the advice of the locksmith), so no other locksmith would let defendant in. Villere told defendant that if he needed more of his things prior arrangements would be required. Later that evening, Villere brought defendant his coat, because he was cold.
Herman testified she takes care of a disabled man, and the Chana Drive house is owned by a trust for him. She has lived there for about 20 years, and has known defendant for over 30 years. The prior Thanksgiving, defendant arrived in the rain with a backpack and asked if he could stay on her couch, which she thought would be a short-term stay. However, he proved handy around the house, fixing a fence and doing chores, so she allowed him to stay. He paid her between $150 to $180 around the first of each month. After defendant began drinking a lot, he became difficult to live with and bothered Herman to the point where she did not feel safe. She asked him to leave “countless” times, for about a month, but he would not. She had told Officer Mann about wanting defendant to leave, but he advised her it was a civil matter. Eventually, her friend Villere said she would help get him out, and Herman gave Villere permission to call a locksmith and get defendant out. Herman arrived back home that day after defendant had already left. Defendant texted Herman later that day, stating he did not want to go to prison, and closing with: “ ‘Love you. God bless. You take care. I’m scared and hurting.’ ”
The next morning on May 7, Herman texted defendant, asking where she should send his belongings, which were packed up. She texted him that she planned to leave his things at Newcastle Mini Storage, which she would pay for, and the key would be waiting for him at the office. She also texted him that she would have someone bring him some of his belongings. He replied “6:00 p.m. at the library. Thank you. God bless.” He pleaded to come back but she told him he could not. She never actually moved the remainder of his belongings into storage; they remained in her basement. She had refused his May rent payment, but she had later found $160 on her bed which he had left her. She still had the money, and offered to give it to defendant in the courtroom. She had not given defendant a 30-day notice to leave.
Detective Jerry Johnson oversees sex offender registrations for Auburn. Registrants must register on their birthdays and within five days of changing their address, unless they are transients, in which case they have to register where they are camping. He meets each registrant personally and goes over a written form that spells out their duties to reregister, and he has them initial each requirement. He registered defendant in December 2014, when defendant first moved into Auburn, listing the Chana Drive address.
Defendant initialed a long series of registration duties, including in part the following paragraph numbers from the form:
5. “[W]hen changing my address within a city . . . , I must register or re-register in person, within five (5) working days.” (Italics added.)
6. “If I change my registered address to a new address” he must inform the police within five working days “before or after I leave. If I do not know my new residence address or transient location I must later notify, by registered or certified mail, the last registering agency . . . of the new address or transient location [within] five (5) working days of moving to the new address or location.” (Italics added.)
7. “If I am registered at a residence address and become transient, I have five (5) working days within which to register as a transient.” (Italics added.)
8. “If I have no residence address, I must register in person in the jurisdiction where I am physically present as a transient within five (5) working days of becoming transient.” (Italics added.)
The form defendant signed, prepared by the Department of Justice as revised January 2013, defines “[r]esidence” in part as “a shelter or structure that can be located by a street address,” and “address” as “[a]ddress at which I regularly reside, regardless of the number of days or nights spent there,” but it does not define “transient.” However, by statute, “For purposes of the [sex offender registration] act, ‘transient’ means a person who has no residence. ‘Residence’ means one or more addresses at which a person regularly resides, regardless of the number of days or nights present there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.” (§ 290.011, subd. (g).)
The form defendant signed contains Mann’s name and telephone number, and also contains Detective Johnson’s e-mail address and telephone number.
Johnson testified registrations are done Monday through Friday. Assuming defendant moved out on Wednesday, May 6, 2015, he could (and should) have registered on Thursday or Friday, May 7-8, or Monday through Wednesday, May 11-13, 2015.
Sergeant Chris Forman testified that on May 14, 2015, he was called to the public library in Auburn and arrested defendant.
DISCUSSION
I
Substantial Evidence
Defendant first contends no substantial evidence supports his conviction. Specifically, he contends no substantial evidence shows that he moved, that he knew of his duty to register, or that he willfully failed to register.
“ ‘On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504.) “Evidence is sufficient to support a conviction . . . if . . . it ‘ “reasonably inspires confidence” ’ . . . and is ‘credible and of solid value.’ ” (People v. Raley (1992) 2 Cal.4th 870, 891.)
A jury might have accepted trial counsel’s argument that defendant did not believe he had moved and therefore did not willfully violate the registration requirement--or at least that a reasonable doubt existed--based on evidence that defendant had left Herman money for May (despite her refusal), had left most of his personal belongings behind, and had not been given 30-day notice. But we do not reweigh the evidence, and we must construe all reasonable inferences therefrom in favor of the jury’s verdict.
Defendant was compliant when told to leave, and he had been on notice for some time that Herman wanted him to leave. He saw the locks being changed, and knew he could not reenter with his key. After he left, he amicably discussed with Herman what should be done with his property. He later pleaded with her to be allowed to come back, showing he knew he was no longer was permitted to stay there. He referenced prison, which the jury could rationally infer meant he knew he had triggered a reregistration duty. He did not contact Officer Mann or Detective Johnson, although their contact information was on the registration form, and he ignored Mann’s numerous telephone messages, from which the jury could infer a willful refusal to try to comply with registration requirements. Defendant did not testify, so there is no direct evidence he subjectively believed he still lived on Chana Drive, although appellate counsel infers that must have been the case. The jury was not required to draw that inference and we presume it did not.
The facts amply support the jury’s verdict as to the issue of whether defendant had changed his address, either by moving elsewhere or becoming a transient, and whether he willfully failed to reregister, with knowledge of his duty to reregister.
Defendant claims he “never acted to move out of that residence, nor did he ever express any intention of doing so,” his texts about his remaining property were “ambiguous,” and he was never lawfully evicted. But the jury was not required to interpret any purported ambiguity in the texts in defendant’s favor. Further, defendant was ousted from the property, whether his ouster was legal or not, and therefore had his address changed for him, regardless of whether he wanted to leave.
Defendant adds that no substantial evidence supports the conclusion he knew he had to reregister, because of a purported divergence between the relevant statute and the wording of the registration form. He contends that even if the statute is clear, the form he signed is too vague to be enforceable. We disagree.
The statute provides in pertinent part as follows:

“(a) Any person who was last registered at a residence address . . . who changes his or her residence address . . . shall, in person, within five working days of the move, inform the law enforcement agency . . . with which he or she last registered of the move, the new address or transient location, if known.

“(b) If the person does not know the new residence address or location at the time of the move, the registrant shall, in person, within five working days of the move, inform the last registering agency . . . that he or she is moving. The person shall later notify the last registering agency . . . in writing, sent by certified or registered mail, of the new address or location within five working days of moving into the new residence address or location.” (§ 290.013, italics added.)
As for the statute, defendant perceives ambiguities in part because of the use in both subdivisions of the phrase “within five working days of the move,” which could mean five days before or five days after, or both. However, the word “within” as used in the statute plainly means before or after, giving registrants flexibility when they make a planned move; in defendant’s case, he had to give notice no later than five days after his move because, of course, he did not plan to leave. The use of “within” does not raise any plausible statutory ambiguity. Defendant also faults subdivision (b), applicable in cases like his--where a person is abruptly required to move and therefore does not yet know the new residence address or transient location--because it speaks of in-person notification of the place to which a person “is moving.” He argues this can be viewed as requiring a pre-move or at least contemporaneous notification, coupled with the requirement of later written notification. We see no ambiguity here, either. The statute straightforwardly requires that “within five working days of the move [the registrant must] inform the last registering agency . . . that he or she is moving” and then provide written notice. Thus, there is no contemporaneous duty triggered by the “is moving” language; the registrant still has five days to register after moving. (§ 290.013.)
Defendant argues the requirements on the registration form not only continue the posited interpretive problems, but exacerbate them. We disagree.
A person without a residence address is defined as a transient by statute (§ 290.011, subd. (g)), and a person of common intelligence would understand what “transient” means in this context, namely, one without a residence, and therefore understand the two provisions of the form that require registration upon becoming a transient. One provides: “If I am registered at a residence address and become transient, I have five (5) working days within which to register as a transient.” (Italics added.) The other provides: “If I have no residence address, I must register in person in the jurisdiction where I am physically present as a transient within five (5) working days of becoming transient.” (Italics added.) Taken together, along with the provisions directed to moves to addressed locations, the form is understandable.
In this specific case, defendant knew he had been moved--albeit involuntarily--from his registered address, and yet he failed to reregister, either with a new address or as a transient, within five days thereafter. Whether he had moved to a new address or was transient was a fact only he knew, but in either case the form adequately advised him that he had five working days after moving to let the police know he was no longer at his previous location, by reregistering. He did not accomplish that legal duty. We reject counsel’s view that “[i]f [registrants] don’t have a new address they can apparently wait to register until they have a new address or transient location and then register within five days. At the same time, they must register within five days of becoming transient.” It is not accurate that a person without a new address “can apparently wait” indefinitely before telling the police anything, and the statute and forms do not so provide. Although there are multiple registration duties, a registered sex offender is on notice that she or he must keep the police informed of his or her location at all times, and has five working days to reregister upon moving. That is not vague. Contrary to defendant’s view, the form adequately advised defendant “how [the duty to register applied] to his circumstances.” (People v. Lecorno (2003) 109 Cal.App.4th 1058, 1068 [trial court misinstructed the jury about willfulness, where there was evidence defendant had been misinformed and did not know that despite the fact he was registered in one place, he was also deemed a resident of a second place where he often stayed].)
Defendant’s reliance on People v. North (2003) 112 Cal.App.4th 621 is unavailing. North held that a former version of the sex offender registration statutes did not give transients adequate notice of what constitutes a location, or change in location. (Id. at pp. 627, 631-636.) But North also held that “Our interpretation of the statute accounts for offenders who change status from resident to transient, as did North in this case, or from transient to resident. The reregistration requirements in these situations pass muster under the vagueness doctrine, so long as transient offenders are not required to provide the authorities with statutorily unspecified ‘locations.’ An offender registered as a resident who becomes transient has five working days to reregister as a transient under the terms of [former] section 290, subdivisions (a)(1)(A) and (e)(2)(E). A transient offender who acquires a place to stay with an address for a period of five working days must reregister as a resident.” (Id. at p. 635, italics added.)
Defendant was a resident of an addressed structure who either left for another address or became transient, the record is not clear. What is clear is that he had the obligation to inform the relevant authorities within five days of his move that he was moving or had moved, thus was no longer a resident of that structure. He failed to do so. North does not aid him, and in fact the italicized portion of the passage just quoted cuts against his claim of vagueness. Further, after North was decided, we held in a case arising on analogous facts that “It is of no consequence whether defendant had moved to the address where law enforcement found him on September 11, 2003, or was merely a transient who was temporarily there. It still can be said he changed his residence, so as to trigger the reregistration requirement. Case law interpreting the word ‘changes’ in the context of the sex offender registration statute states that its primary dictionary definition is to make ‘ “ ‘different in some particular.’ ” ’ [Citation.] There can be no doubt that when an offender leaves the residence at which he has registered, he has made his residence different.” (People v. Musovich (2006) 138 Cal.App.4th 983, 992, italics added, fn. omitted; see People v. Armas (2011) 191 Cal.App.4th 1173, 1178 [“an offender who was last registered at a residence address who leaves that residence must inform the law enforcement agency with which he or she was last registered of the move. ([§] 290.013, subd. (a).) This provision also applies if the offender who previously registered at a residence has now become transient”], see also id. at pp. 1184-1185.)
Accordingly, we reject defendant’s vagueness claims regarding the form.
Defendant also contends that he did not willfully fail to register, because it was not proven that he knew of his duty to register. This claim is largely answered by our earlier discussion, in which we described the evidence from which the jury could infer defendant knew of his registration requirement and willfully failed to fulfill it.
Defendant suggests he was not on notice that he had been ousted until he received texts from Herman regarding his belongings the day after he saw the locks being changed, and therefore he was not too late, because he still had time to register on the date of his arrest. This claim parallels but is not coextensive with an argument trial counsel made to the jury, about the precise time defendant was ousted.
On May 6, 2015, defendant saw the locks being changed, was told by Villere he was not welcome--something Herman had told defendant “countless” times before--and he complied by gathering his things and leaving. The fact Herman did not text him about his remaining belongings until the next day merely solidified the fact of his knowledge that he was no longer welcome, it did not change the date on which he had been physically ousted from the house.
In short, substantial evidence supports defendant’s conviction.
II
Effectiveness of Counsel
In closing argument, defense counsel conceded defendant knew of the duty to follow the registration form requirements within five working days of a move. On appeal, defendant contends this reflected ineffectiveness of trial counsel, in large measure based on the view that the purportedly confusing registration form made such a defense viable, and the withdrawal of that defense was an unreasonable blunder. However, the record is clear that trial counsel had rational, tactical reasons for not challenging defendant’s knowledge of his duty to register, and therefore the claim of ineffectiveness cannot be sustained. (See People v. Lucas (1995) 12 Cal.4th 415, 436-437; People v. Fosselman (1983) 33 Cal.3d 572, 581 [“Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission”].)
First, defendant had a prior conviction for failing to register, which the People were ready and willing to introduce to bolster their evidence of defendant’s knowledge. (See People v. Sullivan (Apr. 2, 2009, C060235) [nonpub. opn.].) Defense counsel convinced the trial court that because knowledge of the duty to register was not contested, it would be prejudicial to admit the prior. This precluded the jury from learning of the prior failure-to-register conviction.
Second, the evidence defendant knew of his duty was extremely strong, consisting not only of Detective Johnson’s testimony and defendant’s initials on the form but also evidence that after defendant left Chana Drive he texted Herman and stated he did not want to go to prison. The prosecutor argued--and the jury could find--that this statement showed defendant understood that having to move could lead to a charge of failing to register. Defendant also failed to return Officer Mann’s calls, from which the jury could infer he was avoiding his registration duty. On this record, defense counsel could rationally conclude it was wiser to focus on the defenses that (1) defendant had not actually moved, or (2) at least he believed he had not moved and therefore did not willfully fail to register (RT 231-236), rather than risk alienating the jury by contesting the knowledge element. In some cases, “candor may be the most effective tool available to counsel.” (People v. Mayfield (1993) 5 Cal.4th 142, 177.) In this case, given the evidence, “ ‘good trial tactics demanded complete candor’ with the jury. [Citation.] Under the circumstances we cannot equate such candor with incompetence.’ ” (People v. Jackson (1980) 28 Cal.3d 264, 293, overruled on another point, People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Therefore, we reject the claim of ineffective counsel.
III
Denial of Landlord-Tenant Instruction
Defendant asked the trial court to instruct the jury on landlord-tenant law, to show that he had been improperly evicted. In support, he attached a document from the county welfare office in which Herman declared defendant became a “renter,” paying $200 per month, as of November 27, 2014. Herman testified this shared housing statement pertained to defendant’s receipt of public assistance. The prosecutor argued the way in which Herman evicted defendant did not alter his status as an evictee. The trial court declined to give the instruction, finding the issue was irrelevant and confusing. We agree.
“[A] trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30.) Even if defendant had a civilly enforceable tenancy that might entitle him to pursue an action against Herman for wrongful eviction, it would not change the fact that he knew he was no longer living at the Chana Drive house. Defendant was allowed to introduce the fact of lack of notice for the ouster, and was permitted to argue to the jury that this--combined with defendant’s payment of $160 and the fact he left belongings behind--meant he had not actually moved out. But asking the jury to determine the lawfulness of the ouster itself would have been both irrelevant and confusing. The trial court properly refused to instruct on landlord-tenant issues.
DISPOSITION
The judgment is affirmed.



/s/
Duarte, J.



We concur:


/s/
Nicholson, Acting P. J.




/s/
Robie, J.