People v. Balkin

51 Cal.Rptr.3d 687

145 Cal.App.4th 487

The PEOPLE, Plaintiff and Respondent, v. Eric BALKIN, Defendant and Appellant.

No. B186152.

Court of Appeal, Second District, Division 5.

December 1, 2006.

Law Offices of Chris R. Redburn and Chris R. Redburn, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Eric Ross Balkin, appeals from his conviction for failing to register as a sex offender. (Pen.Code,¹ § 290, subd.(a)(1)(A).) The dispositive issue is whether there is substantial evidence defendant failed to register within five days of entering the city or county of Los Angeles, an essential element of a violation of section 290, subdivision (a)(1)(A). We conclude there is no such evidence. Accordingly, we reverse the judgment with directions to dismiss the information.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) Defendant stipulated that he had been convicted of registerable sex offenses, three counts of forceful oral copulation, section 288a, subdivision (c) in 1987. As a result of those convictions, defendant was required to register as a sex offender. Sharon Wolfe worked as a correctional counselor at the California Institution for Men during the years 2000 and 2001. In that capacity, she met with inmates prior to their release on parole and often reviewed section 290 registration requirements with them. Ms. Wolfe did not recall defendant by name. However, a review of documentation dated August 14, 2001, involving defendant suggested that she would have identified him by name, photo, and prison number. The section 290 registration notification form would have been discussed with and explained to defendant to insure his understanding prior to obtaining his signature and thumbprint. Ms. Wolfe would have read each section to defendant and provided him an opportunity to review the document and ask questions. Thereafter, Ms. Wolfe would sign and date the form as a witness to the inmate's signature. Ms. Wolfe recognized her signature on the registration notification form dated August 14, 2001. The form included the provisions: "My responsibility to register as a sex offender is a lifetime requirement. [¶] ... [¶] I must register within five working days of coming into or of changing residence or location within any city, county, or city and county in which I am located or residing with the law enforcement agency having jurisdiction over my location or place of residence. [¶] ... [¶] Upon release from incarceration, placement or commitment, I must register or reregister if I have previously registered with a law enforcement agency having jurisdiction over my location or place of residence within five working days of release. [¶] ... [¶] If I am a parolee, I must provide proof of registration to my parole agent within six working days of release or parole."

Correctional Officer Ruben Contreras had been employed by the Department of Corrections at Chino for 17 years. There was no evidence Officer Contreras had an independent recollection of defendant's 2003 release from prison. But, Officer Contreras testified that pursuant to his normal procedures he would have: informed defendant of the section 290 registration requirements by reading each paragraph of the advisement form; inquired whether defendant understood what was read; and had defendant initial next to that paragraph. The form, dated December 4, 2003, reflected that defendant initialed the separate paragraphs. The form also included the signatures of Officer Contreras and defendant.

The Office of the Attorney General Sex Offender Tracking Program provided documentation that defendant was informed of his section 290 registration requirements on December 28, 1989, March 25, 1991, May 29, 1992, April 2, 1993, February 24, 1994, April 14, 2000, February 6 and August 14, 2001, and December 4, 2003. The Sex Offender Tracking Program records showed that defendant was last paroled on April 3, 2005. There is no evidence to establish the prison from which defendant was paroled. The Sex Offender Tracking Program had no record of defendant registering pursuant to section 290 at any time. Shaudi Pishvaie, a fingerprint expert with the Los Angeles Police Department, compared defendant's fingerprints with those imprinted on the various registration notifications in exhibit No. 2. Ms. Pishvaie determined that the fingerprints on the registration forms dated May 29, 1992, April 1, 1993, and February 24, 1994, positively matched those taken of defendant at the time of trial. The fingerprints on the remaining forms were not clear enough to make positive identifications.

Defendant was arrested on April 21, 2005, in downtown Los Angeles by Los Angeles Police Officer Jose Lopez. Defendant identified himself as Samuel Hawks. Defendant was subsequently photographed and fingerprinted. When interviewed, defendant gave the address of 628 San Julian Street as the location where he received mail.

III. DISCUSSION

Defendant argues that there was insufficient evidence to support his conviction for willfully failing to register as a sex offender within five working days of entering Los Angeles. Defendant was charged with violating section 290, subdivision (a)(1)(A). When defendant was last notified of his obligation to register as a sex offender on December 4, 2003, section 290 provided in pertinent part: "(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, or while attending school or working in California ... shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located, or the sheriff of the county if he or she is residing, or if he or she has no residence, is located, 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, or, if he or she has no residence, is located." (Italics added.) In 2004, following the holding of People v. North (2003) 112 Cal.App.4th 621, 634, 5 Cal.Rptr.3d 337, the Legislature amended section 290, subdivision (a)(1)(A) eliminating references to the registrant's "location." (Stats.2004, ch. 429, § 1, No. 7 Deering's Adv. Legis. Service, p. 735.) Section 290, subdivision (a)(1)(A) provided after the 2004 amendment and now states: "Every person described in paragraph (2), for the rest of his or her life while residing in California, or while attending school or working in California, as described in subparagraph (G), 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, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, 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." (Stats.2004, ch. 429, § 1, No. 7 Deering's Adv. Legis. Service, p. 735.) The parties agree defendant's release on April 3, 2005, would have been governed by the revised statute. The California Supreme Court has repeatedly held: "`"The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]" [Citations.]'. ..." (People v. Sorden (2005) 36 Cal.4th 65, 72-73, 29 Cal.Rptr.3d 777, 113 P.3d 565, quoting People v. Barker (2004) 34 Cal.4th 345, 357, 18 Cal.Rptr.3d 260, 96 P.3d 507; Wright v. Superior Court (1997) 15 Cal.4th 521, 527, 63 Cal.Rptr.2d 322, 936 P.2d 101; see also People v. Chan (2005) 128 Cal.App.4th 408, 416, 26 Cal. Rptr.3d 878.)

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, 6 Cal.Rptr.2d 822, 827 P.2d 388, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631, 276 Cal.Rptr. 874, 802 P.2d 376; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 446 U.S. at p. 319, 99 S.Ct. 2781; People v. Bolin (1998) 18 Cal.4th 297, 331, 75 Cal.Rptr.2d 412, 956 P.2d 374; People v. Marshall (1997) 15 Cal.4th 1, 34, 61 Cal.Rptr.2d 84, 931 P.2d 262; People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103; People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies...