Parks, In re

• Decision Date: 14 August 1986
• Citation: 229 Cal.Rptr. 202,184 Cal.App.3d 476
• Parties: In re Joseph Ray PARKS on Habeas Corpus. E003100.
• Court: California Court of Appeals Court of Appeals

Page 202

229 Cal.Rptr. 202

184 Cal.App.3d 476

In re Joseph Ray PARKS on Habeas Corpus.

E003100.

Court of Appeal, Fourth District, Division 2, California.

Aug. 14, 1986.

[184 Cal.App.3d 477] Michael Ian Garey, for petitioner.

Grover C. Trask II, Dist. Atty., and William E. Mitchell, Deputy Dist. Atty., for respondent and real party in interest.

OPINION

RICKLES, Acting Presiding Justice.

On November 12, 1963, Joseph Parks (petitioner) was convicted of forcible rape (Pen.Code, § 261, subd. 3). ¹ As a result of his conviction, petitioner was subject to the requirements of section 290, registration of sex offenders. ²

On May 1, 1984, the Riverside District Attorney filed a complaint in the Municipal Court, Corona Judicial District, Riverside County, alleging petitioner had failed to register pursuant to section 290, subdivision (f). ³ Petitioner entered a plea of not guilty and on July 30, 1984, he filed a motion to dismiss, claiming the prosecution was barred by the statute of limitation. ⁴ The trial court found section 290, subdivision (f), a "continuing offense" and ruled the prosecution was not barred.

On September 11, 1984, petitioner sought and obtained in the Superior Court, County of Riverside, the issuance of an alternative writ of prohibition. The superior court issued a ruling denying the writ, on the ground section 290 is a continuing offense. Shortly thereafter, petitioner filed a petition for writ of prohibition/mandate and stay in this court. We denied the writ on November 5, 1984.

On November 14, 1984, petitioner petitioned for hearing in the California Supreme Court. The petition was denied.

On April 30, 1985, trial was commenced in the Riverside County Municipal Court, Corona Judicial District. Petitioner was found guilty of violating section 290. He was sentenced to one year informal probation on the condition he serve 90 days in the Riverside County jail.

Petitioner appealed to the Appellate Department of the Riverside Superior Court. Petitioner's conviction was affirmed. The Appellate Department granted certiorari to this court. On December 31, 1985, we denied petitioner's request for transfer. Petition for review was also denied.

On January 15, 1986, petitioner filed a "Petition for Writ of Mandate and Stay," in the California Supreme Court, seeking to have this court accept transfer. The Supreme Court denied petitioner's writ, without prejudice to the filing of a writ of habeas corpus "challenging compliance with the statute of limitation in the Court of Appeal."

Petitioner filed a writ of habeas corpus in the Supreme Court. On April 24, 1986, the Supreme Court transferred the proceedings to this court with directions to issue an order to show cause and set the matter for hearing.

For the reasons explained below, we deny the writ.

Initially we observe neither party has cited a case which directly addresses the issue raised by this writ. We have been unable to locate a case directly on point. Our decision is guided by the considerations enunciated in Toussie v. United States (1970) 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156.

In distinguishing the "instantaneous" from the "continuing" offense, the Toussie court observed the following: ⁵ "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before 'the principle that criminal limitations statutes are "to be liberally interpreted in favor of repose," [citation].' [Citation.] We have also said that '[s]tatutes of limitations normally begin to run when the crime is complete.' [Citations.] And Congress has declared a policy that the statute of limitations should not be extended '[e]xcept as otherwise expressly provided by law.' 18 USC § 3282. These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances since, as the Court of Appeals correctly observed in this case, '[t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.' [Citation.] These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or, the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." (Toussie v. United States, supra, 397 U.S. at pp. 114-115, 90 S.Ct. at pp. 859-860; emphasis added.) ⁶

Petitioner views the express terms of section 290, subdivisions (a) and (e), ⁷ and concludes the offense is completed upon the failure of the convicted sex offender to register. ⁸ He claims: "[N]othing in the language of Penal Code section 290 explicitly states that it is to be viewed as a continuing offense. Looking to the express language of the section, it is clear that it is a crime to move into a new area without complying with the section's provisions within the applicable grace period. It does not make criminal the 'act' of residing in a locality without being registered. Nor does the section carry an express provision that it defines a 'continuing offense.' " (Original emphasis.)

We find petitioner's argument, he has an initial duty to register which is renewed upon each move, incongruous with his argument that his failure to register is an instantaneous offense. While we agree section 290 does not "explicitly state" a violation is to be viewed as a continuing offense, nor does it have an "express provision" defining a violation as a continuing offense, the "explicit language of the substantive criminal statute compels" the conclusion it is a continuing offense.

Section 290, subdivision (a), imposes a continuing duty to register within 30 days (now 14 days) following each change of address. This requirement pertains to both temporary and permanent moves of more than 30 days' duration. The statute does not relieve a person of the duty to register if he fails to do so within the 30-day time frame. The 30-day period was employed to discourage premature police action and allow a reasonable time to accomplish registration; it is not intended as a signal to sex offenders to "lay low" for one year. The statute obviously intended the continuing failure to register to be the criminal act.

Our construction of section 290 is in harmony and accordance with section 4. "The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and promote justice." (See also Parnell v. Superior Court, Alameda County (1981) 119 Cal.App.3d 392, 407-409, 173 Cal.Rptr. 906, holding kidnaping a continuing offense.)

Even were we to conclude the explicit language of section 290 did not compel the finding it is a continuing offense, we believe "the nature of the crime involved is such that Congress [the Legislature] must assuredly have intended that it be treated as a continuing one." (Toussie v. United States, supra, 397 U.S. at p. 115, 90 S.Ct. at p. 860.) Section 290's purpose is to assure that persons convicted of one of its enumerated crimes "shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future." (Bar i v. Municipal Court (1970) 1 Cal.3d 821, 825-826, 83 Cal.Rptr. 819, 464 P.2d 483.) The Supreme Court similarly concluded in United States v. Bailey (1980) 444 U.S. 394, 413, 100 S.Ct. 624, 62 L.Ed.2d 575, that given the continuing threat to society posed by an escaped prisoner, Congress must have intended a continuing offense.

We find further support for our conclusion in California authority. In re Reed (1983) 33 Cal.3d 914, 919, 191 Cal.Rptr. 658, 663 P.2d 216, held section 290 "applies automatically to the enumerated offenses, and imposes on each person convicted a lifelong obligation to register. A misdemeanant may be released from this 'penalty or disability' pursuant to section 1203.4...." (See also Barrows v. Municipal Court, supra, 1 Cal.3d at p. 825, 83 Cal.Rptr. 819, 464 P.2d 483; In re Smith (1972) 7 Cal.3d 362, 367, 102 Cal.Rptr. 335, 497 P.2d 807.)

Finally, the traditional purpose for a statute of limitation does not compel our finding petitioner's failure to register an instantaneous offense. First, evidentiary concerns are limited exclusively to whether the sex offender has registered. Passage of time is not likely to obscure the absence or presence of such a record. Second, prompt investigation of suspected criminal behavior will not be fostered. Section 290 was enacted to deter recidivism by facilitating the apprehension of repeat offenders. (In re Reed, supra, 33 Cal.3d at p. 922, 191 Cal.Rptr. 658, 663 P.2d 216.) The absence of a registrant could go undetected when he fails to notify authorities and is not sought by them. ⁹ Third, the Legislature has created a registration procedure for sex offenders because they are more likely to commit repeated sex offenses. It has determined "self-reformation" is unlikely and continued surveillance is necessary.

We will not eviscerate section 290 by finding it an instantaneous offense. Were we to do so, we would be...