People v. Anderson, B212361 (Cal. App. 3/10/2010)

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THE PEOPLE, Plaintiff and Respondent, v. JOHN SPOON ANDERSON, Defendant and Appellant.

B212361.

Court of Appeals of California, Second Appellate District, Division Two.

March 10, 2010.

Appeal from judgments of the Superior Court of Los Angeles County, No. KA078161. Tia Fisher, Judge. Reversed in part, affirmed in part, with directions.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in the Official Reports

DOI TODD, J.

A jury convicted John Spoon Anderson (appellant) of one count of failure to register as a sex offender under former Penal Code section 290, subdivision (a)(1)(A)¹ (count 1); two counts of failure to update registration annually under former section 290, subdivision (a)(1)(D) (counts 2, 4); and failure to file a change of address under former section 290, subdivision (f)(1)(A) (count 3).² The trial court found true the allegation that appellant had suffered 12 prior serious or violent felony convictions within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d) (the "Three Strikes" law).

After denying appellant's Romero³ motion, the trial court sentenced appellant to a total term of 75 years to life, which consisted of consecutive terms of 25 years to life on counts 1, 2, and 4 pursuant to the Three Strikes law. In count 3, the trial court imposed a concurrent term of 25 years to life.

Appellant appeals on the grounds that: (1) there was insufficient evidence to support his conviction in count 1; (2) there was insufficient evidence to support the convictions in counts 2 and 4; (3) section 654 precludes multiple punishment for failure to register a new address and failure to notify the last registering agency of the new address; (4) the trial court failed to exercise its discretion and abused its discretion when it failed to weigh all relevant factors in deciding the Romero motion; and (5) his sentence of 75 years to life for failing to register as a sex offender in 2006 and 2007 constitutes cruel and unusual punishment under the federal and state Constitutions.

FACTS

Prosecution Evidence

Before trial, appellant admitted he had suffered a prior conviction that required him to register as a sex offender. Gregory Lee Emrick (Emrick) was assigned to the Records Bureau for the City of Pomona in March 2005. One of his duties was to attend to persons who were required to register as sex offenders. He identified the form he used to register appellant on March 15, 2005, with the address appellant provided, i.e., 475 East Foothill Boulevard, No. 205, in Pomona. Appellant gave his date of birth as March 21, 1956.

Appellant checked all the boxes on the form, indicating that he understood the following requirements: to register as a sex offender for the rest of his life; to register as a sex offender with the law enforcement agency having jurisdiction over his residence within five working days whenever he changed his address; and to annually update his registration within five working days of his birthday, beginning with the first birthday following registration or change of address. He also indicated that he understood that, even if he were a transient, he must register within five working days of his birthday with the law enforcement agency having jurisdiction over his residence or where he was currently registered as a transient.

Emrick identified the photograph he took of appellant when he registered. Emrick's practice was to place the form and photograph in the registrant's file, along with a thumbprint. The parties stipulated that the thumbprint belonged to appellant.

Emrick identified other forms completed by appellant in March 2001, March 2002, March 2003, and March 2004. Appellant never listed himself as a transient, and always listed the same address. Emrick said he never explained any of the items to be checked to the registrants unless a registrant asked a question. He just told them to read it and initial the items.

Gabriela Cortez (Cortez) began working as the resident apartment manager at 475 East Foothill Boulevard in Pomona on April 7, 2006. She knew the residents of apartment No. 205, and appellant was not one of them. Cortez had never seen appellant at the complex. She had no knowledge of whether he lived there before April 2006.

Since March 2006, Annette Flores (Flores) has been tasked with registering sex offenders and keeping the registration records for the Pomona Police Department. She was trained to enter registration data in the Violent Criminal Information Network (VCIN) database maintained by the California Department of Justice (DOJ). This information is also used to update the Megan's Web site, which is maintained by DOJ. With respect to offenders who no longer have a residence, Flores explains to them that they have to register as a transient and come in to the department every 30 days.

Flores reviewed the copies of appellant's registration records and the VCIN system with respect to appellant, and it showed that his last registration was in 2003, although the file showed the last registration form with his name was completed in 2005. Flores explained that the system would show that appellant was in compliance but would not show the actual registration if the address did not change from the one he had been registering previously. As far as Flores knew, appellant had not returned to Pomona to register since 2005.

A copy of a person's registration is mailed to that person's address with a "Do Not Forward" message on it. The person is also handed a copy. All of appellant's registration forms from prior years had a notation indicating they were mailed to appellant.

Defense Evidence

Appellant presented no evidence.

DISCUSSION

I. Sufficiency of the Evidence in Count 1

A. Appellant's Argument

Appellant contends the prosecution presented no proof of any kind to show that appellant had, within Los Angeles County, an address that he was required to register on or about May 1, 2006. There was no evidence that appellant was seen in, arrested in, worked in, stayed in, or received mail in Los Angeles County at or around this date. Furthermore, the date selected by the prosecutor was random and without a factual or evidentiary basis.

B. Relevant Authority

When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment 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 beyond a reasonable doubt.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Halvorsen (2007) 42 Cal.4th 379, 419.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears "`that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

C. Proceedings Below

Appellant was charged in count 1 with a violation of the 1996 version of section 290, subdivision (a)(1)(A), which required him to register his new address.⁴ The trial court instructed the jury that the elements of this offense were: "One, the defendant resided in Los Angeles County; Two, the defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 within five working days of coming into or changing his residence within any city or unincorporated area in Los Angeles County; Three, the defendant willfully failed to register as a sex offender with the police chief of any city in Los Angeles County within five working days of coming into or changing his residence within that city or willfully failed to register as a sex offender with the sheriff of Los Angeles County if he is residing in an unincorporated area or in a city in Los Angeles County that has no police department within five working days of coming into or changing residence within that city or unincorporated area of Los Angeles County."⁵ (Italics added.) (CALCRIM No. 1170.)

Appellant filed a motion for a new trial in which he argued that element number one was not proved, since the prosecution failed to present any evidence on this element. The prosecution responded that it had shown that appellant had resided continuously in Los Angeles County and had registered there for at least the past 12 years. Given that appellant's home had always been Los Angeles County, the People argued, circumstantial evidence showed appellant continued to reside in Los Angeles County, and there was no evidence presented that he was residing anywhere else. The trial court denied appellant's motion, stating that, given the argument on this point and the jury instructions, the jury was satisfied that the People had proven circumstantially that appellant continued to reside in Los Angeles County.

D. Count 1 Must Be Reversed

At the outset, with respect to appellant's claim that the date in count 1 was arbitrary, we cannot agree. The prosecutor established through Cortez, the apartment manager, that appellant did not live at 475 East Foothill Boulevard on April 7, 2006, or thereafter. April 7, 2006 was the day the apartment manager began working at that address. The prosecutor chose the first day of the next complete month as the date by which appellant had failed to reregister. Since the prosecutor could not know the exact date prior to April 7, 2006, that appellant...