The People v. Soto

THE PEOPLE Plaintiff and Respondent,

v.FRANK BOBBY SOTO, Defendant and Appellant.

F057973

No. 07CM2106

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed 11/22/10

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant/defendant Frank Soto was required to register as a sex offender. He was released on parole in Kings County and initially complied with the registrationrequirement. He subsequently could not be found by his parole officer and was arrested three months later in Los Angeles. Defendant was charged and convicted of failing to comply with the sex offender notification requirements, because he failed to advise Kings County that he had moved from his registered address within five days of having moved. (Pen. Code¹, § 290, subd. (b)²). Defendant admitted that he had two prior strike convictions and served five prior prison terms (§ 667.5, subd. (b)), and he was sentenced to the third strike term of 25 years to life plus five years for the prior prison term enhancements.

On appeal, defendant contends there is insufficient evidence of the corpus delicti of the offense such that his post-arrest statements should not have been admitted. He also raises issues of instructional error, and contends his conviction is not supported by substantial evidence. Finally, he argues his third strike term constitutes cruel and/or unusual punishment. We will affirm.

FACTS

In November 1999, defendant was convicted in the Superior Court of Kings County of violating section 288, subdivision (a), commission of a lewd or lascivious act on a child under the age of 14 years. As a result of that conviction, defendant was required to register as a sex offender.

In January 2006, defendant was released on parole and moved into Kings County. On January 5, 2006, defendant met with Parole Agent James Mitchell, who explained the conditions of his parole. Mitchell also explained the specific rules and regulations of the sex offender registration requirements, and reviewed the registration form withdefendant. Defendant initialed each line on the form, which indicated that he read and understood each notification requirement, and signed the bottom of the form. Among the stated registration requirements on the form, defendant initialed the notifications which said that he had five days to notify Kings County if he moved out of the jurisdiction and that he had five working days to register as a transient with local law enforcement if he became homeless.

At that time, defendant complied with the sex offender registration requirements and declared on the form that his address was a residence on 13th Avenue near Hanford, located in an unincorporated area of Kings County. He had been placed at that residence by state parole because it was a "secured house for parolees" and "high risk sex offender[s]." At some point after January 2006, however, defendant was returned to prison on a parole violation.

In April 2007, defendant was again paroled to Kings County. On April 27, 2007, defendant met with Mitchell, who again reviewed his conditions of parole and the form which stated the same sex offender registration requirements. Defendant complied with the registration requirements, and declared on the form that he lived at the same residence on 13th Avenue in Hanford.

At 8:15 a.m. on May 10, 2007, Mitchell went to the 13th Avenue residence to conduct a routine "home call" on defendant, and make sure he was complying with his parole conditions and still living at the same registered address. There were five other parole registrants who lived at the residence, and defendant shared a bedroom with another parolee. Mitchell looked around for defendant and determined he was not at the residence. Mitchell asked defendant's roommate about his whereabouts, and the roommate said he did not know where defendant was. Mitchell left a note on defendant's bed and instructed him to contact Mitchell as soon as possible.

On May 11, 2007, Mitchell went back to the residence to look for defendant. Mitchell's note was still on defendant's bed and defendant was not there. Mitchell leftanother note on defendant's bed, which instructed defendant to report to Mitchell's office the next morning.

Mitchell testified that defendant failed to appear on May 12, 2007. On or about that date, Agent Cassina, Mitchell's partner, went to the 13th Avenue residence to look for defendant. He was not there. Both of Mitchell's notes were still on defendant's bed, and they appeared to be in the same place. Cassina performed a cursory search of the room, which contained a closet and two dressers. Cassina testified there was "a lot of property in the room... that was in [defendant's] area and his side." The closet was full of clothes, but Cassina could not determine if the clothes belonged to defendant or his roommate. Cassina found a shoebox in the closet which contained documents, prison paperwork, and mail in defendant's name.

Defendant never contacted Mitchell, he never informed any law enforcement agency in Kings County that he had moved from the 13th Avenue residence or he left Kings County, and he never registered at another address in the state. Mitchell testified that he suspected defendant had absconded as of May 10, 2007. Mitchell explained that when defendant registered as a sex offender, he was informed that he had five days to notify Kings County if he changed his address within that county or moved outside that jurisdiction. If he did not have a new address, he had five working days to notify Kings County if he became a transient.

On the afternoon of August 6, 2007, Los Angeles Police Officer Jason Crosswhite responded to an indecent exposure call in Sylmar and encountered defendant. Defendant was speaking on a cell phone. Crosswhite instructed him to put down the cell phone and place his hands behind his back. Defendant refused to cooperate, locked his arms in the air, and refused to move. Defendant then elbowed Crosswhite in the chest and ran away. Crosswhite and two other officers chased defendant. The officers caught up with defendant, and they had to use force to detain and take him into custody. Defendant wasasked for his address and replied, '"I ain't got none.'" Defendant was later asked for his current residence, and defendant said he was a transient.

As we will discuss in issue IV, post, defendant was charged and convicted of failing to notify Kings County authorities that he had changed his registered address.

DISCUSSION

I. Corpus delicti

Defendant contends his admissions to the Los Angeles arresting officers—that he was a transient and did not have an address—were inadmissible in this case because the prosecution failed to prove the corpus delicti of the charged offense independent of his admissions. Defendant further contends the court had a sua sponte duty to instruct the jury with CALCRIM No. 359, that it could not convict him based on his admissions unless it found some independent evidence of the corpus delicti of the charged offense of failing to comply with the sex offender registration requirements.

"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez):) The prosecution must establish the corpus delicti independent from the admissions of the defendant, thus assuring the accused does not admit to a crime which did not occur. (Id. at p. 1169.) "The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence 'of every physical act constituting an element of an offense, ' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citations.]" (Id. at p. 1171.)

"The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as 'slight' [citation] or 'minimal' [citation]. The People need make only a prima facie showing '"permitting the reasonableinference that a crime was committed."' [Citations.] The inference need not be 'the only, or even the most compelling, one... [but need only be] a reasonable one....'" (People v. Jones (1998) 17 Cal.4th 279, 301-302, italics in original.) "In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1171.)

As we will explain in section IV, post, defendant was tried and convicted of a violation of former section 290, subdivision (f)(1), that he was registered at the 13th Avenue residence in Kings County, he moved from that residence, and he failed to notify Kings County within five days that he had changed his residence either within or outside that jurisdiction. (Stats. 2006, ch. 337, § 11, effective 9/20/06 to 10/12/07, hereinafter referred to as former § 290, subd. (f)(1)(A)). As applicable to...