P. v. House

Filed 10/24/06 P. v. House CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.

Cheryl Rae Anderson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Robert James House was convicted of two counts of failing to register as a sex offender pursuant to Penal Code section 290, subdivision (g).^[1] House contends that one conviction must be stricken because a failure to register annually on his birthday is continuing in nature and therefore only one offense was committed. He also challenges the imposition of separate punishment. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

House was convicted of forcible rape in 1995 and was required, upon his release from prison, to register as a sex offender pursuant to section 290, subdivision (g).

On January 10, 2005, officers were conducting a search for a parolee and House was questioned in connection with the search. While he was being questioned, officers ran a check for warrants and it was discovered that House had failed to register as a sex offender and had an outstanding misdemeanor warrant.

House was charged in count 1 with failing to register within five working days of his November 15, 2003, birthday and in count 2 with failing to register within five working days of his November 15, 2004, birthday.

Modesto Police Officer Veronica Holmes testified that House registered as a sex offender several times between February 7, 2001, and November 18, 2002. He did not register in 2003 or 2004. Deeann Mendoza, of the state Department of Justice, testified that the state tracking system received registration information for House in 2001 and 2002, but nothing in 2003 or 2004.

House was convicted on both counts of failing to register. The trial court imposed a term of imprisonment for both convictions, with the terms to be served consecutively.

DISCUSSION

The evidence demonstrated that House failed to register within five working days of his November 15, 2003, birthday and also failed to register within five working days of his November 15, 2004, birthday. House asserts that failure to register as a sex offender pursuant to section 290 is a continuing offense. Because the offense is continuing in nature, he contends only a single offense was committed and that one of the section 290 convictions must be stricken.

House’s contention is identical to that raised by the defendant in People v. Meeks (2004) 123 Cal.App.4th 695. The Meeks court acknowledged that failure to register pursuant to section 290 is a continuing offense. However, “simply because the Legislature intended that a violation of section 290 be a continuing offense does not mean that a defendant cannot be convicted and punished for new and separate violations of section 290 as he continues to ignore the law.” (Meeks, at p. 702.) After analyzing the statute, the Meeks court concluded:

“By requiring defendants to register annually and with every change of residence, it was no doubt the Legislature’s intent to treat each violation of the registration requirements as a separate, continuing offense in order to encourage compliance with the law and to ensure to the extent possible that a sex offender’s whereabouts remain known.” (Id. at p. 703.)

We agree with the analysis and holding in Meeks. House’s separate convictions for failing to register within five working days of his November 15, 2003, and his November 15, 2004, birthdays are proper.

House further argues that if both convictions stand, section 654 requires that the punishment imposed on one conviction be stayed. He contends that the failure to register after each of his birthdays was committed with the same criminal objective and intent -- to avoid police scrutiny and arrest -- and therefore is part of the same course of conduct for purposes of section 654.

Again, the Meeks court addressed this issue, resolving it adversely to House’s position. Once a triggering event occurs, such as failure to register after a birthday, the offense of failing to register is continuing in nature. (People v. Meeks, supra, 123 Cal.App.4th at p. 705.) Although a triggering event occurs with each birthday, and the objective of failing to register after each birthday may be the same, “it cannot reasonably be argued that defendant can be punished only once for each successive failure to register.” (Ibid.)

Regardless of whether the objective or intent with each failure to register is the same, failing to register after each birthday is not a single act or a single course of conduct. Each failure to register after a birthday is a separate triggering event giving rise to separate offenses. Section 654 does not prohibit the multiple punishment imposed in this case. (People v. Meeks, supra, 123 Cal.App.4th at pp. 705-706.)

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Cornell, J. and Dawson, J.

^[1] All further statutory references are to the Penal Code unless otherwise specified.