People v. Brown

THE PEOPLE, Plaintiff and Respondent, v. BRIAN JEFFREY BROWN, Defendant and Appellant.

E064679

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

June 21, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FSB1502429)

OPINION

APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Reversed.

Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A person who has been convicted of a registrable offense under the Sex Offender Registration Act (Pen. Code, § 290 et seq.)¹ (the Act), and who has been incarcerated for over 30 days, is required to register as a sex offender in accordance with the Act, or reregister if the person previously registered, within five working days of the date the person is released from incarceration (§ 290.015, subd. (a)).

In this case, a jury found defendant and appellant, Brian Jeffrey Brown, guilty as charged of violating section 290.015, subdivision (a) of the Act. The court found defendant had two prison priors (§ 667.5, subd. (b)) and sentenced defendant to four years in prison: two years for the failure-to-register conviction plus two years for the two prison priors.

The prosecution's theory of the case was that defendant willfully failed to reregister as a sex offender within five working days following his release from custody on April 2, 2015, after he had been in custody over 30 days. The prosecution claimed that defendant's underlying registrable offense—the offense which required him to register in accordance with the Act—was a 1991 juvenile adjudication for assault to commit rape, a violation of section 220. (§ 290.008, subds. (a), (c).) Section 220 may be violated by assault to commit rape, a registrable offense, or by assault to commit mayhem, a nonregistrable offense. (§ 290.008, subd. (c).) The jury was specifically instructed that, to prove defendant guilty of the failure to register charge, the People hadto prove "defendant was previously adjudicated of the offense [of] assault with intent to commit rape."

In this appeal, defendant claims insufficient evidence shows that his 1991 juvenile adjudication for violating section 220 was based on assault to commit rape, rather than assault to commit mayhem. Thus, he argues that insufficient evidence supports his failure-to-register conviction. We agree that insufficient evidence supports the conviction. Accordingly, we reverse the judgment of the conviction.²

II. BACKGROUND

A. Prosecution Evidence

The jury trial was conducted in October 2015. At the time of trial, Nicole De La Cruz had worked for over 11 years as an office specialist for the San Bernardino County Sheriff's Department, and was responsible for completing and overseeing the completion of the registrations of persons required to register as sex, arson, and narcotics offenders in San Bernardino County. At one point, Detective Donald Patton asked De La Cruz when defendant had last registered as a sex offender. De La Cruz checked the California Sexand Arson Registry System (CSARS), which accesses every law enforcement agency in California, and discovered that defendant had last registered on August 2, 2012. The CSARS system shows each time a person has registered as a sex offender as well as each time the person has been notified of his or her duty to register as a sex offender. De La Cruz found no sex offender registrations for defendant in 2013, 2014, or 2015. De La Cruz personally registered defendant as a sex offender on June 13, 2007.

When defendant last registered as a sex offender on August 2, 2012, defendant signed, initialed, and placed his thumbprint on "an SS8047" form titled, "Sex Registration/Change of Address/Annual or Other Update," acknowledging that in the event he was in custody for over 30 days he had a duty to reregister as a sex offender within five working days of his release from custody. (§ 290.015, subd. (a).) By signing the same form, defendant also acknowledged that his "responsibility to register as a sex offender in California is a lifetime requirement" and that the Act also required him to update his registration information, annually, within five working days of his birthday. Defendant was born on May 31, 1976.

On September 20, 2012, after he last registered on August 2, 2012, defendant was released from custody after having been in custody for over 30 days. When he was released on September 20, 2012, defendant signed, initialed, and placed his thumbprint on another SS8047 form, again acknowledging his obligation to reregister within five working days following his release from custody if he had been in custody for over 30days, and also acknowledging that his failure to reregister under such circumstances would constitute a violation of section 290.015.

For over 14 years, Detective Patton had been responsible for investigating the registration compliance of sex offenders in San Bernardino County, and was "[e]xtremely familiar" with defendant through his work with sex offenders. On December 2, 1994, while he was in custody for a 1991 juvenile court adjudication for violating section 220 and other crimes, defendant signed and placed his thumbprint on an older SS8047 form titled, "Notice of Registration Requirement," acknowledging he had been notified of his "duty to register as a convicted sex offender pursuant to Section 290 . . . ." The older SS8047 form indicated that defendant had a 1991 juvenile court adjudication for violating section 220 which, according to Detective Patton, was based on defendant's commission of assault with intent to commit rape. The older SS8047 form listed the adjudication as "220 PC" but did not indicate whether the section 220 violation was based on assault to commit rape or assault to commit mayhem. Detective Patton did not testify that he had personal knowledge that defendant's section 220 violation was based on assault to commit rape.

On April 2, 2015, defendant was released from custody in Riverside County after having been in custody for over five months, first in San Bernardino County from October 2014 through March 30, 2015, then in Riverside County for two more days, from March 30 to April 2, 2015. After an agency advised him in June 2015 that defendant had failed to reregister following his release from custody on April, 2, 2015, Detective Pattonchecked the CSARS system and found that defendant did not register following his April 2, 2015 release. The CSARS system showed defendant had been notified of his duty to register over 45 times.

William Lee, a supervising deputy district attorney for San Bernardino County, testified that defendant was charged with failing to update his sex offender registration—a violation of section 290.018, subdivision (g)—in San Bernardino County Superior Court case No. FSB1405489. On March 27, 2015, after he had been in custody in San Bernardino County for 166 days, defendant pled no contest to the failure-to-register charge. During Lee's testimony, the court took judicial notice of the court file in case No. FSB1405489, including the plea form.

Lee also testified concerning a three-page certified document from the DJJ, which was admitted into evidence as exhibit 8. The first page was a letter dated March 11, 2015 from the DJJ addressed to the Office of the District Attorney, County of San Bernardino. The letter referenced case No. FSB1405489, defendant's name, defendant's DJJ number, and juvenile court case No. J-145649. The letter states: "Your request dated March 9, 2015, for information to establish a prior conviction in the above named case has been received. [¶] Our records indicate that the subject [defendant] was committed to the [DJJ] (formerly the Department of Youth Authority) . . . on August 29, 1991, for [sections] 220/12022[, subdivision] (b) Assault with Intent to Commit Rape . . . and was discharged from the [DJJ] on November 9, 2000. [¶] . . . [¶] This is to certify that theforegoing is true and correct information from the original document ('Register of Actions' card) on file in this office."

The second and third pages of the three-page certified document consist of untitled records, each marked as certified by the DJJ as true and correct copies of originals on file at the DJJ. According to Lee, the second page shows that defendant, as a juvenile, committed assault with intent to commit rape, a violation of section 220, and was committed to the former California Youth Authority (CYA), currently the DJJ, for the section 220 offense and other offenses on August 29, 1991.

On the second page, the word "rape" is handwritten after the typewritten phrase "PC 220 Assault [with] Intent to Commit." A handwritten asterisk appears next to the word "rape" and the handwritten phrase "PC 290 sex offender reg[istration]*" appears near the bottom of the document. The second page also shows defendant was dishonorably discharged from his CYA commitment on November 9, 2000. The third page appears to be a computer-generated document; contains defendant's name, social security number, and other identifying information; and contains the phrase "Referral History" near the top. The third page indicates that in juvenile court case No. J-145649 defendant was convicted of "RAPE" in violation of section 220, along with first degree burglary (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)), and malicious mischief (§ 594, subd. (b)(4)), on June 5, 1991.

Lee opined based on his...