Filed 8/15/22 P. v. Fernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge.

Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Jorge Fidel Fernandez was found guilty of failure to register as a sex offender upon release from incarceration and failure to register as a sex offender upon change of address. He was sentenced to the upper term of three years’ imprisonment on both counts (the sentence on count 2 was stayed). On appeal, defendant contends that (1) the trial court erred in failing to sua sponte instruct the jury regarding consideration of circumstantial evidence and (2) his sentence must be vacated, and his case remanded for resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to Penal Code section 1170, subdivision (b).[1] The People disagree as to the first issue but concede the second issue. We accept the People’s concession as to the second issue. We therefore vacate defendant’s sentence and remand for resentencing consistent with section 1170, subdivision (b). In all other respects, we affirm.

PROCEDURAL SUMMARY

On November 6, 2019, the Fresno County District Attorney filed an information, charging defendant with willfully failing to register his residence with the sex offender registry within five days of his release from custody (§ 290.15; count 1) and willfully failing to register as a sex offender upon changing address (§ 290, subd. (b); count 2). Both counts alleged that defendant suffered predicate offense convictions for indecent exposure (§ 314, subd. (1)) in 2015 and failure to register as a sex offender (§ 290, subd. (b)) in 2016.

On January 13, 2020, the jury found defendant guilty on both counts.

On March 10, 2020, the trial court sentenced defendant to three years in prison as follows: on count 1, three years (the upper term); and on count 2, three years (the upper term) stayed pursuant to section 654.

On March 10, 2020, defendant filed a notice of appeal.

FACTUAL SUMMARY

On October 7, 2015, defendant “was convicted of a sexual offense in Orange [C]ounty, in [case No.] 15CF1031 and as a result of that conviction, he [wa]s required to register pursuant to … Section 290.”

On August 6, 2019, defendant was released from Kern County jail.

Carlos Segura was a parole agent with the Department of Corrections and Rehabilitation. On August 7, 2019, Segura met with defendant for the first time because defendant was one of the parolees assigned to his caseload. Segura and defendant discussed defendant’s parole conditions and sex offender registration requirements. Among other things, defendant was required to use a global positioning system (GPS) tracking device as a condition of his parole and required to register as a sex offender because he was convicted of a sexual offense.

At that first meeting, Segura issued defendant a GPS tracking device and fitted it to his ankle. Segura also provided defendant with a “notice of sex offender registration requirement” form, also known as a “8047 form.” Segura read the form to defendant and asked defendant if he understood the form. Defendant then indicated he understood the form, initialed each paragraph that contained a registration requirement, and signed the bottom of the form. Defendant had previously initialed and signed 8047 forms on October 7, 2015, January 25, 2017, and March 28, 2017.[2] Segura signed the box on the form indicating that he “certif[ied] that [he] notified [defendant] of his … duty to register [as a sex offender], and [he] verified [defendant] understands the registration requirements.” Defendant also signed a box acknowledging that he “ha[d] been notified of [his] duty to register as a sex offender,” that not doing so was “punishable as a criminal offense,” and that completion of the 8047 form did “not complete [his] duty to register. Upon release from incarceration …, [he] must register in person within five (5) working days to complete the registration process.” (Capitalization modified.)

The requirements listed in the form and initialed by defendant, included the following:

“My responsibility to register as a sex offender in California is a lifetime requirement, except as provided in … [section] 290,005, … [section] 290.5 or by court order.

“I must register in person, if I have never registered, within five (5) working days of 1) coming into California, or 2) release from incarceration, placement, commitment, or release on probation, with the law enforcement agency having jurisdiction over my place(s) of residence or where I am physically present as a transient. ([] § 290[.])

“I must re-register in person, if I have previously registered, within five (5) working days after release from incarceration, placement, or commitment that lasted thirty (30) or more days, or within five (5) working days after release on probation. I do not have to re-register after release if I was incarcerated for less than thirty (30) days and I return to the last registered address, and the update of registration that is required to occur within five (5) working days before or after my birthday did not fall within that incarceration period. ([] § 290.015[.]) [¶] … [¶]

“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 having jurisdiction over my residence. ([] §[§] 290, 290.013[.])

“If I change my registered address to a new address, either within the same jurisdiction or anywhere inside or outside of the state, I must inform the last registering agency or agencies in person within five (5) 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 or agencies of the new address or transient location within five (5) working days of moving to the new address or location. ([] § 290.013[.])

“If I am registered at a residence address and become transient, I have five (5) working days within which to register in person with the law enforcement agency having jurisdiction where I am physically present as transient. ([] § 290.011.)

“If I am registered as a transient and move to a residence, I have five (5) working days within which to register in person with the law enforcement agency having jurisdiction over the new address. ([] § 290.011[.])”

After defendant initialed and signed the 8047 form, Segura reiterated that defendant was “required to actually go to the sex registration office and register in person.” Segura then drove defendant to the sex offender registration office on the same date, on a working day for the registration office, “and showed him exactly where he needed to register.” There was “no doubt in [Segura’s] mind” that defendant knew the sex offender registration requirements that he was required to comply with and how to comply with those requirements.

After Segura drove defendant to the sex offender registration office, he then drove defendant to a homeless shelter because defendant said, “he did[ not] have a place to stay.” Defendant indicated he would stay at the homeless shelter. Segura told defendant to register with the sex offender registration office the following day. Defendant responded that he would do so.

On August 12, 2019, Segura contacted defendant because the battery on defendant’s GPS tracking device was losing charge. Segura reiterated to defendant the “conditions [of his parole], along with his [sex offender] registration requirements.” Segura confirmed that defendant continued to live at the homeless shelter and asked defendant if he had registered with the sex offender registration office. Defendant continued to live at the homeless shelter but had not registered with the sex offender registration office. Segura reminded defendant “that he needed to register before five working days ends.” Defendant indicated he understood and said he would complete his registration requirements.

On August 13, 2019, at approximately 3:30 p.m., Segura arrested defendant for a parole violation because defendant allowed the battery on his GPS tracking device to lose all charge. Defendant was released from the jail the following morning at approximately 4:00 a.m. He did not report to the parole office on that date despite being required to do so.

On August 15, 2019, Segura visited defendant at the homeless shelter because he did not check in the previous day. Segura transported defendant from the shelter to the parole office, issued him a new GPS tracking device, and transported him back to the homeless shelter. During that interaction, Segura told defendant “[t]hat he must register” as a sex offender. They did not discuss the number of days remaining for defendant to register with the sex offender registration office, but defendant acknowledged that he had not yet registered and knew that he needed to register.

On August 19, 2019, Segura again contacted defendant because defendant again allowed the battery on his GPS tracking device to lose all charge. He provided defendant with a charge to his GPS tracking device and learned that defendant decided to no longer stay at the homeless shelter and had instead decided to be transient. Segura again reiterated that defendant was required to register. Defendant acknowledged that he understood and that he had not yet registered. He had not attempted to register, nor had he asked for assistance in doing so. Segura told defendant to go register the next day and again told defendant the operating hours of the sex offender registration office. Defendant responded that “[h]e would be there.” Segura then transported defendant to the general relief building for assistance such as food stamps, social security, or cash aid.

Segura discussed with defendant that he was required to register within five days of his release from jail or prison. He informed defendant that the time to register did not start over from the date that he left the homeless shelter or the dates of his arrests. Defendant indicated his awareness that time did not start over based on him leaving the homeless shelter or his arrests.

Cassandra Stevens was a police officer with the City of Fresno. On August 21, 2019, she was assigned to the sexual assault unit which included monitoring of section 290 registrants. Her office used the California Sex and Arson Registry (“CSAR”), maintained by the Department of Justice. When a person required to register or update registration as a sex offender came to the registration office to register, a form 80102 was generated to record the registration. When a form 80102 displayed in the CSAR system, it was an indication that a person required to register actually complied with the registration requirement (one exception not relevant to the proceeding was identified).

On August 21, 2019, Stevens received an email from Segura, informing her that defendant was required to register and had not done so. Stevens confirmed in the CSAR system that defendant had not registered. In fact, in her review of the CSAR system, she learned that defendant had never registered since the original requirement arose in 2015. Stevens checked with local hospitals to see if defendant had suffered some condition that prevented him from registering. She found no information that would suggest that had been the case. She saw that defendant had been arrested on August 13, 2019, and released the following day. His detention did not include any of the times that the sex offender registration office was open.

Defendant was arrested on August 21, 2019, at 6:41 p.m. Between his release from custody on August 6, 2019, and his arrest on August 21, 2019, at 6:41 p.m., the sex offender registration office had been open for seven days in which defendant could have registered. The days and times that the office was open were listed outside the sex offender registration office. In the past, when those required to register have been unable to go to the sex offender registration office, officers have gone with them to assist in the registration process.

DISCUSSION

I. Sua Sponte Duty to Instruct on Consideration of Circumstantial Evidence

Defendant contends that the trial court had a sua sponte duty to instruct on circumstantial evidence regarding the mental state required for the offenses and failed to do so. Specifically, defendant argues that Segura’s testimony that defendant said that he understood his duty to register and defendant’s “signatures on each of the several 8047 forms … constituted only circumstantial evidence of his alleged actual knowledge of the duty to timely register under the circumstances” and therefore gave rise to a sua sponte duty for the trial court to instruct on circumstantial evidence. The People disagree that any error occurred but argue, among other things, that any error was harmless because of the “extensive, repeated, and years-long evidence of [defendant]’s knowledge and avoidance of his duty to register as a sex offender.” We agree with the People that (1) the trial court did not error in not giving a specialized circumstantial evidence instruction, and (2) any error was harmless.

A. Additional Background

The trial court did not instruct the jury regarding consideration of direct versus circumstantial evidence. A discussion occurred off the record regarding giving instructions regarding circumstantial evidence. The trial court then memorialized that discussion on the record:

“THE COURT: [The parties] wanted to put on the record a summary of our discussions on jury instructions. By starting out with saying there are a handful that the court is not going to give, and I think all parties are in agreement with this, so I’ll state the CAL[]CRIM numbers, and then and if you agree these not be given. The first is 223, direct and circumstantial evidence defined[;] [and] 224, circumstantial evidence sufficiency of evidence. … Do you agree, counsel?

“[DEFENDANT’S COUNSEL]: Yes.

“[THE PROSECUTOR]: Yes, Your Honor.”

The trial court further did not instruct the jury using CALCRIM No. 225, relating to use of circumstantial evidence to prove mental state or intent. Regarding the requisite state of mind to commit the offenses at issue, the trial court instructed the jury, in relevant part, as follows:

“For you to find a person guilty of the crimes in this case of Failure to Register, that person must not only intentionally fail to do the required act, but must do so with a specific mental state. … [¶] … [¶] The specific mental state required for the crime of Failure to Register is knowledge of the requirement to register.” (See CALCRIM No. 251.)

The trial court further instructed the jury on the required mental state in instructing on the elements of the offense:

“To prove that the defendant is guilty of this crime, the [P]eople must prove that: [¶] … [¶] [D]efendant actually knew he had a duty under … section 290 to register as a sex offender living in Fresno, California and that he had to register within five working days of being released from incarceration, commitment, or release on probation pursuant to subdivision (b) of Section 290.” (See CALCRIM No. 1170.)

B. Analysis

The trial court has a sua sponte duty to instruct the jury on the general principles of law that are necessary for the jury’s understanding of the case. (People v. Mayfield (1997) 14 Cal.4th 668, 773, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363.) “In particular, ‘[a] trial court has a sua sponte duty to give [CALCRIM No. 224] in criminal cases “where circumstantial evidence is substantially relied upon for proof of guilt ….” ’ ” (People v. Burch (2007) 148 Cal.App.4th 862, 870.) Alternatively, “CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the defendant’s specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.’ ” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171–1172.)[3] “[B]ut [neither instruction] should … be given where the evidence relied on is either direct or, if circumstantial, is not equally consistent with a reasonable conclusion of innocence.” (People v. Heishman (1988) 45 Cal.3d 147, 167, abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) Nor are such instructions required “where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence.” (People v. Malbrough (1961) 55 Cal.2d 249, 251.)

“To be convicted of failure to register as a sex offender, a defendant must have actual knowledge of the duty to register as a sex offender” within five working days of a triggering event. (People v. Aragon (2012) 207 Cal.App.4th 504, 509; accord, CALCRIM No. 1170.) While some circumstantial evidence of defendant’s knowledge of the requirement that he register were admitted—for instance, Segura’s repeated reminders—the People relied primarily on direct evidence of defendant’s actual knowledge of his registration requirement and the circumstantial evidence was merely incidental to and corroborative of that direct evidence. That is to say, Segura repeatedly testified that defendant acknowledged that he knew he was required to register within five working days of his release from incarceration and within five working days of his entry into Fresno County; and four 8047 forms were admitted that bore defendant’s signature on the box reflecting that he understood his requirement to register. Defendant’s acknowledgements that he knew he had to register within five working days were direct evidence of his state of mind. The fact that Segura and the forms gave notice of the registration requirements to defendant—i.e., provided circumstantial evidence of defendant’s knowledge of the requirement that he register—did not necessitate instruction with CALCRIM No. 225 because those notices were, in each instance, coupled with defendant’s verbal or written acknowledgement of the fact that he was required to register—i.e., direct evidence of his knowledge. Because the circumstantial evidence was merely incidental to, and corroborative of, the direct evidence, no circumstantial evidence instruction was required.

Moreover, the circumstantial evidence regarding defendant’s notice of registration requirements was not equally consistent with guilt and innocence; it almost invariably pointed to guilt. Defendant had been required to register since 2015, had been advised of the requirement in 8047 forms four times, and had been repeatedly advised by Segura to register within five working days of his release from incarceration and from his entry into Fresno County. That evidence strongly suggests that defendant knew his registration requirements. Defendant argued at trial and now repeats the argument that he understood the registration requirements to restart the five-day timer each time he was released from custody. No evidence supported that conclusion, and it was not a reasonable reading of the 8047 form or the law. The 8047 form explicitly advised defendant of the requirement that a person who had never registered must “register in person … within five (5) working days of … release from incarceration, placement, commitment, or release on probation, with the law enforcement agency having jurisdiction over [his] place(s) of residence or where [he was] physically present as a transient.” It further advised defendant that “pon coming into, or when changing [his] residence address within a city and/or county in which [he was] residing, [he] must register or re-register in person, within five (5) working days, with the law enforcement agency having jurisdiction over [his] residence.” The trial court was not required to sua sponte instruct on circumstantial evidence because the circumstantial evidence was not equally consistent with a reasonable conclusion of innocence.

[u]II. Senate Bill 567

Defendant contends that we must vacate the sentence and remand the matter because he did not admit, and the jury did not find true, the facts underlying the circumstance in aggravation that the trial court relied upon in imposing the upper term, nor did the trial court rely upon a certified record of conviction. The People concede that defendant’s sentence should be vacated, and the matter remanded for resentencing in light of the changes effected by Senate Bill 567. We accept the People’s concession.

A. Additional Background

The probation officer recommended the trial court find true four circumstances in aggravation, all related to defendant’s criminal history and performance on probation or parole. Defendant’s criminal history, as summarized by the probation officer, included four prior convictions for failing to register as a sex offender. The trial court made the following comment regarding the justification for imposition of the upper term:

“The Court: [Defendant], this is a frustrating case, I’ll tell you, honestly. I don’t know why you persistently fail to register. You know that you’re required to, been convicted multiple times and here you are again for the same thing. I just don’t understand that. Anyway, I’m not trying to lecture you, I’m just stating out loud. I just don’t understand it, and I think the recommendation is appropriate in light of that. The fact that you persistently and consistently fail to register warrants the aggravated term.”

Defendant did not admit any prior convictions for failure to register, the jury did not find them to be true, and the record does not reflect that the trial court relied upon a certified record of conviction.

The trial court sentenced defendant to the upper term on counts 1 and 2, and stayed the sentence on count 2.

B. Analysis

From March 30, 2007, to January 1, 2022, California’s determinate sentencing law specified that “[w]hen a judgment of imprisonment [wa]s to be imposed and the statute specifie[d] three possible terms, the choice of the appropriate term … rest[ed] within the sound discretion of the court.” (§ 1170, former subd. (b).)

Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b). (Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, “[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) As an exception to the general rule, a trial court is permitted to rely upon a certified record of conviction to determine prior criminality for purposes of sentencing without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).)

As a threshold matter, the parties agree, as do we, Senate Bill 567 is retroactive to cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [remanding for resentencing under another ameliorative amendment to section 1170 by Senate Bill 567]) and defendant’s sentence is not yet final on appeal.

As the parties agree, the aggravating circumstance relied upon by the trial court—that defendant had suffered multiple prior convictions for failure to register as a sex offender—was not found true by the jury, admitted by defendant, or found true in reliance on a certified record of defendant’s prior convictions. The upper-term sentences on counts 2 and 3 are therefore inconsistent with the requirements of section 1170, subdivision (b).[5] We therefore vacate defendant’s sentence and remand for resentencing.

We take no position on how the trial court should exercise its discretion.

DISPOSITION

Defendant’s sentence is vacated, and the matter is remanded for resentencing consistent with section 1170, subdivision (b). In all other respects, the judgment is affirmed.

* Before Detjen, Acting P. J., Peña, J. and DeSantos, J.

[1] All statutory references are to the Penal Code.

[2] The August 7, 2019, March 28, 2017, January 25, 2017, and the October 7, 2015 forms were all admitted into evidence.

[3] “CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive.” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1172.)

[4] The parties disagree regarding the appropriate standard for harmlessness. Defendant argues that the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, applies because the absence of a circumstantial evidence instruction reduced the burden of proof on an element of the offenses. (See People v. Brooks (2017) 3 Cal.5th 1, 69–70 [reviewing error in misdescription of an element of an offense under Chapman].) The People, on the other hand, argue that even if failing to instruct the jury regarding consideration of circumstantial evidence is error, it did not impact defendant’s federal constitutional rights and should therefore be evaluated under the reasonable probability standard of People v. Watson (1956) 46 Cal.2d 818, 836. Because we would find any error harmless under either standard, we need not resolve the dispute.

[5] The People do not argue that any error on this issue was harmless, and we therefore do not consider harmlessness.