P. v. Simon

Filed 4/25/07 P. v. Simon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, James M. Brooks, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

The juvenile court in 1998 found John Gene Simon had committed a sex offense which subjected him to the registration requirements for sex offenders under Penal Code section 290 (all statutory references are to this code unless otherwise noted). In June 2005, Simon pleaded guilty to four counts of auto burglary. The trial court granted Simon probation after Simon agreed to follow certain terms and conditions, including a six-month jail term and a promise to violate no law. The trial court found Simon violated his probation when he failed to register as a sex offender after his release from custody on the six-month jail term for the auto burglaries.

Simon appeals the trial courts finding he violated probation, arguing section 290 is unconstitutionally vague as applied to him. He also challenges the sufficiency of the evidence to support the courts finding he willfully failed to register after his release from custody. Even if sufficient evidence supports the courts order, Simon contends the court abused its discretion in revoking probation. For the reasons stated below, we affirm.

I

Facts and Procedural Background

In March 1998, a juvenile court found Simon committed a lewd act on a child under the age of 14. ( 288, subd. (a).) This finding subjected Simon to the provisions of section 290, which requires persons convicted of certain sex offenses to register with their local police department. In June 2005, Simon pleaded guilty to four counts of second degree automobile burglary and one misdemeanor count of possessing burglary tools. The court suspended imposition of sentence and placed him on formal probation for three years on various terms and conditions, including service of a 180-day jail term.

In December, the probation officer filed a petition alleging Simon ran afoul of the [v]iolate no laws condition of his probation by failing to reregister as a sex offender after his release from local custody in September 2005.[1] Simon was also charged with a substantive offense for failing to reregister as required under section 290.

The trial court heard the probation violation in conjunction with a preliminary hearing on the new charge in December 2005. At the combined hearing, the only witness was Santa Ana Police Detective Tom Kirchmeyer, who ran the citys sex offender registration detail. According to the detective, local records and those from the Violent Criminal Information Network (VCIN), a state Department of Justice database that tracks sex offender registrations within the state, reflected Simon had last registered on April 11, 2005. Since his original release from the Youth Authority on the registrable offense, Simon had registered each year around his April 9 birthday. The original registration form Simon completed in 2002 expressly advised him to register after his release from incarceration. The registration form Simon completed in April 2005, advised him he must register within five working days after release from incarceration. Simon placed his initials next to this advisement. Jail records reflected Simon had been released from jail on September 20, 2005.

The prosecutor argued Simon violated section 290, subdivision (a)(1), when he failed to register within five days of his release from jail because there is a change in his residence. We know where he is when hes in custody. When he leaves custody, we dont know where he is . . . . She also argued that subdivision (e)(2) required reregistration upon release from incarceration, and that subdivision (e)(2)s reference to paragraph (1) of subdivision (a), required reregistration within five days. Defense counsel interpreted section 290 to require authorities to inform Simon of the requirement to reregister upon his release. Because authorities failed to meet this obligation, Simon argued he did not violate section 290.

The court found Simon violated probation, revoked probation, and ordered him to serve a year in jail with credit for time served. The court also terminated his probation in two other cases and ordered a consecutive jail term.

II

Discussion

A. Standards Governing Revocation of Probation

A court may revoke and terminate probation if the interests of justice so require and the court, in its judgment, has reason to believe that the probationer has violated any of the conditions of his or her probation, has committed a criminal offense since being placed on probation, or has become abandoned to improper associates or a vicious life . . . . ( 1203.2, subd. (a).) The prosecution must prove the facts supporting revocation of probation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439; Evid. Code,  520 [party claiming a person is guilty of crime or wrongdoing has the burden of proof on that issue].) Revocation of probation rests within the sound discretion of the trial court. (People v. Smith (1970) 12 Cal.App.3d 621, 626.) While this discretion is broad, the court may not act arbitrarily or capriciously and must base its determination on the facts before it. A court may abuse its discretion in revoking probation if a probationer is in technical violation only and has a valid excuse. (Ibid.) Similarly, a court may abuse its discretion in revoking probation if a defendant did not willfully violate probation. (People v. Zaring (1992) 8 Cal.App.4th 362, 375.)

B. Section 290

Section 290 imposes upon a convicted sex offender a duty to register with local law enforcement and update authorities on a change of residence. Subdivision (a)(1)(A) provides, Every person described in paragraph (2) [i.e., those required to register; see also subd. (d)(1) (registration of juvenile court wards)] . . . shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department . . . within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides. (See People v. Balkin (2006) 145 Cal.App.4th 487.) A registered person who changes his residence must, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, and of the new address or transient location, if known. (Subd. (f)(1)(A); People v. Britt (2004) 32 Cal.4th 944, 951.) A person must also update his registration annually within five days of his birthday. ( 290, subd. (a)(1)(D).) A person subject to section 290 who willfully violates these requirements is guilty of a felony. (Subd. (g)(2).)

Subdivision (e) addresses registration requirements for persons incarcerated or placed on probation. Section 290, subdivision (e)(1), provides that upon incarceration, placement, or commitment, or prior to release on probation, any person who is required to register under this section shall preregister. The preregistering official shall be the admitting officer at the place of incarceration, placement, or commitment, or the probation officer if the person is to be released on probation. A person is required to preregister only once ( 290, subd. (e)(1)(C)).

Section 290, subdivision (e)(2), provides that [a] person [subject to registration] shall register, or reregister if the person has previously registered, upon release from incarceration, placement, commitment, or release on probation pursuant to paragraph (1) of subdivision (a). This paragraph shall not apply to a person who is incarcerated for less than 30 days if he or she has registered as required by paragraph (1) of subdivision (a), he or she returns after incarceration to the last registered address, and the annual update of registration that is required to occur within five working days of his or her birthday, pursuant to subparagraph (D) of paragraph (1) of subdivision (a), did not fall within that incarceration period. (Italics added.)[2] As noted above, paragraph 1 of subdivision (a) provides that those required to register must do so with the chief of police in the city of residence within five working days of coming into, or changing residence within, the city.

C. Section 290 Not Unconstitutionally Vague

Simon contends section 290 is unconstitutional as applied to him. Specifically, he argues subdivision (e)(2)s registration requirement fails to provide adequate notice and therefore is void for vagueness: Out of the 6,210 words that make up section 290, only subdivision (e)(2) appears to apply to appellants situation, and it does not require registration within five days. It does refer back to subdivision (a)(1), but that section only requires registration within five days of a change of address. The trial court found it confusing and was not at all certain that the five[-]day requirement applied, but ultimately accepted the prosecutors argument, finding that interpretation to be more logical and reasonable than any I have heard so far. [] Equally logical and reasonable, however, would be the interpretation that reregistration would be necessary for an individual released from custody if subdivision (a)(1) required him to do so; i.e., he had changed his address. A reasonable person in appellants position could easily assume . . . that if his address[] had not changed from the address on the registration, it was not necessary to register again.

Due process bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application. (People v. North (2003) 112 Cal.App.4th 621, 628; Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes].) Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. (Chicago v. Morales (1999) 527 U.S. 41, 56; People v. Castenada (2000) 23 Cal.4th 743, 751; see People v. Franklin (1999) 20 Cal.4th 249, 253 [registration statutes must give clear notice to all registrants of their responsibilities so that laypersons can readily understand and properly discharge them].) But only reasonable specificity is required. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-1117.) A statute is not void for vagueness if its language is susceptible to a reasonable and practical construction or if its terms are made reasonably certain by reference to other definable sources. (Ibid.)

It is reasonably clear section 290, subdivision (e)(2), requires a person to register after release from any custody, including incarceration arising after the initial registration. (See  4 [common law rule that penal statutes are to be strictly construed has no application to Penal Code; all provisions are construed according to the fair import of their terms with a view to effect its objects and to promote justice].) Subdivision (e)(2) directs the registrant to reregister if the person has previously registered. (Italics added.) It also provides an exception where the incarceration is less than 30 days, the person returns to the last registered address, and he has not missed an annual update. Simons construction is not reasonable because it would nullify the exception to the requirement of reregistration for brief incarcerations. An interpretation that renders statutory language a nullity is to be avoided. (See Code Civ. Proc., 1858; Williams v. Superior Court (1993) 5 Cal.4th 337, 357.)

Finally, the subdivisions directive to reregister . . . pursuant to paragraph (1) of subdivision (a), must refer to the requirements that the person register with the police in the city of residence within five working days of coming into, or changing residence within, the city. In other words, leaving prison or jail is akin to changing a residence. Where the person has been in custody for 30 days or more, it is more likely the persons residence will have changed. The purpose of section 290 is to assure that persons convicted of enumerated crimes will be readily available for police surveillance at all times because the Legislature deems them likely to commit similar offenses in the future. (People v. Sorden (2005) 36 Cal.4th 65, 72-73.) That purpose is served by requiring a person released from custody after serving 30 days to reregister with the police within five working days.

Although section 290 is somewhat lengthy and tangled, it reasonably apprises registrants of the duty to reregister within five working days of release from custody. Accordingly, we conclude the statute is not void for vagueness.

D. Substantial Evidence Supports Simons Failure to Reregister

To prove a violation of section 290, the prosecution must show both the defendants actual knowledge of the duty to register and a willful failure to register. ( 290, subd. (g)(2); see  7, subd. 1 [willfully when applied to the intent with which an act is done or omitted implies a purpose or willingness to commit the act, or make the omission referred to]; People v. Barker (2004) 34 Cal.4th 345, 351; People v. Garcia (2001) 25 Cal.4th 744, 751-752 (Garcia).) In Garcia, the court observed, Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. . . . Accordingly, a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement. (Id. at p. 752.)

Where sufficiency of the evidence is challenged, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty . . . . (People v. Johnson (1980) 26 Cal.3d 557, 578.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 933.)

Simon challenges the sufficiency of the evidence to show he knew of his obligation to reregister and intentionally failed to do so. The Attorney General argues the evidence conclusively demonstrated that [Simon] had been repeatedly notified in writing that he had a duty to reregister within five days of his release from custody and had failed to do so. Appellant initialed the forms acknowledging his duty to reregister.

Detective Kirchmeyer supplied a Notice of Sex Offender Registration Requirement form 8047 that Simon apparently completed in January 2002. The form contains 16 bullet-pointed items, above which appears the statement I have been notified of my duty to register as a convicted sex offender pursuant to [s]ection 290 . . . . I understand that [listing the 16 items], and below which Simons signature appears as the person notified. Item four provides, [U]pon release from incarceration, placement, or commitment, I must register or reregister if I have previously registered, with the law enforcement agency having jurisdiction over my location or place of residence.

Kirchmeyer also supplied a copy of form 8102 (Sex Registration/Change of Address/Annual or Other Update) filed with the Santa Ana Police Department, dated April 11, 2005. Printed in bold capitals at the top of the back side of the form is the following: REGISTRATION REQUIREMENTS REGISTRANT IS REQUIRED TO READ AND INITIAL ALL REQUIREMENTS. Nineteen advisements follow, and Simons initials (JS) appear next to each one. The fourteenth item provides: Upon release from incarceration, placement, or commitment, within 5 working days, I must register or re-register with the law enforcement agency having jurisdiction over the place where I am physically as a transient, or my place(s) of residence.

Kirchmeyer testified that based on his training and experience, inmates subject to section 290 are required to complete a form 8102 upon release from incarceration. Records reflected Simon was booked May 25, 2005, and released from jail on September 20, 2005. His last registration was the April 11, 2005 update. On cross-examination, Kirchmeyer acknowledged Simon had registered in the past around his birthday. He registered on March 13, 2002, April 5, 2002, April 4, 2003, and in April 2004. Kirchmeyer acknowledged the January 2002 form did not mention the five working days requirement, although other items did, in bold type. He also acknowledged Santa Ana sends out a reminder courtesy letter notifying registrants of their duty to register within five days of their birthday but it does not send out similar missives at other times. Simons probation officer told Kirchmeyer he did not inform defendant of his duty to register within five days of his latest release. Kirchmeyer did not know how many registration forms Simon had actually signed or how many included the five-day proviso.

Although the issue is close, we conclude sufficient evidence supports the trial courts determination. Were we sitting as factfinder, we might arrive at a different conclusion than the trial court, based on the facts Simon had never before shirked his registration duties and that he had no reason to avoid registration on the present occasion. But we are a court of review and may not reverse if circumstances reasonably justify the trier of facts findings, even if credible evidence supports a contrary finding. It is undisputed Simon had been notified in writing just five months earlier that he had a duty to reregister within five days of release from incarceration. It is also undisputed he failed to reregister, and nothing in the record suggests the failure was inadvertent. While notice alone does not necessarily (i.e., as a matter of law) satisfy the willfulness requirement(Garcia, supra, 25 Cal.4th at p. 752), the unexplained failure to reregister reasonably supported the trial courts factual finding Simons failure to reregister was knowing and willful.

As for Simons argument the court abused its discretion by revoking probation for a merely technical violation, there is no evidence in the record he had a valid excuse for the violation. The avowed purpose of mandating registration for those committing specified offenses is to assure that such persons are readily available for police surveillance and to notify members of the public of the existence and location of sex offenders so they can take protective measures. (People v. Dulan (2007) 147 Cal.App.4th 1428, 1438.) Simons failure to reregister therefore did not constitute a technical violation of his probation.

III

Disposition

The order revoking probation and imposing sentence is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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[1] In November, the probation officer had filed a petition alleging Simon provided a false residence address to the probation department. The petition alleged that in September, Simon had been directed to maintain a residence approved by the probation department and had informed his probation officer he was residing in Santa Ana with his grandparents. During an attempted home visit in November, Simons grandmother told the probation officer Simon had never lived with her. The record does not reflect what became of the November petition but no evidence was presented at the probation violation hearing that Simon provided a false address to his probation officer.

[2] Section 290, subdivision (e)(2)(A), provides that [t]he registration shall consist of all of the following: [] (A) A statement in writing signed by the person, giving information as shall be required by the Department of Justice and giving the name and address of the persons employer, and the address of the persons place of employment if that is different from the employers main address. [] (B) The fingerprints and a current photograph of the person taken by the registering official. [] (C) The license plate number of any vehicle owned by, regularly driven by, or registered in the name of the person. [] (D) Notice to the person that, in addition to the requirements of paragraph (4), he or she may have a duty to register in any other state where he or she may relocate. [] (E) Copies of adequate proof of residence, which shall be limited to a California drivers license, California identification card, recent rent or utility receipt, printed personalized checks or other recent banking documents showing that persons name and address, or any other information that the registering official believes is reliable. If the person has no residence and no reasonable expectation of obtaining a residence in the foreseeable future, the person shall so advise the registering official and shall sign a statement provided by the registering official stating that fact. Upon presentation of proof of residence to the registering official or a signed statement that the person has no residence, the person shall be allowed to register. If the person claims that he or she has a residence but does not have any proof of residence, he or she shall be allowed to register but shall furnish proof of residence within 30 days of the date he or she is allowed to register. [] (3) Within three days thereafter, the preregistering official or the registering law enforcement agency or agencies shall forward the statement, fingerprints, photograph, and vehicle license plate number, if any, to the Department of Justice.