People v. Barker

• Decision Date: 30 August 2004
• Docket Number: No. S115438.,S115438.
• Citation: 18 Cal.Rptr.3d 260,34 Cal.4th 345,96 P.3d 507
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald BARKER, Defendant and Appellant.

18 Cal.Rptr.3d 260

34 Cal.4th 345

96 P.3d 507

The PEOPLE, Plaintiff and Respondent, v. Donald BARKER, Defendant and Appellant.

No. S115438.

Supreme Court of California.

August 30, 2004.

Rehearing Denied September 29, 2004.¹

Richard Such, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant.

Jack Funk, Assistant Public Defender, for California Public Defenders Association as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Gerald A. Engler and Mary Jo Graves, Assistant Attorneys General, René A. Chacón, Laurence K. Sullivan, Ronald E. Niver, Stan Cross and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

A registered sex offender must, within five working days of the offender's birthday, update his or her registration. (Pen. Code, § 290, subd. (a)(1)(D).)² Willful failure to update one's registration is a felony. (§ 290, subd. (g)(2), hereafter section 290(g)(2).) The question presented by this case is whether the willfulness element of the offense may be negated by just forgetting to register. We conclude it may not be.

FACTUAL AND PROCEDURAL BACKGROUND

Because the issue before us is narrow, the facts may be briefly stated. Defendant is a registered sex offender. He was required to register because of two rape convictions; he was also convicted of attempted rape. His victims were 70, 73, and 84 years of age. He beat them so severely they were hospitalized; the 84-year-old was in critical condition for three days.

Defendant understood his birthday triggered an obligation to update his registration. In 1996, 1997, and 1998, he signed and dated boxes on forms that recited this obligation. Seven months before he committed this offense, defendant again signed a sex offender registration form. On this form he initialed 15 statements advising him of his various registration obligations, including the following statement: "I must, annually, within 5 working days of my birthday, go to the law enforcement agency having jurisdiction over my location or place of residence and update my registration, name, and vehicle registration."

Nevertheless, in 2000, defendant failed, by his own admission, to update his registration within five working days of his birthday, as required by section 290, former subdivision (a)(1)(C) (now subd. (a)(1)(D)). When he was arrested, defendant acknowledged he had not only initialed the advisements regarding his registration obligations, but also that he had read and remembered them. Asked why he had failed to update his registration within the grace period, defendant responded, "[B]ecause I'm in a program, I'm a house manager," a job that "keeps me busy all the time." Pressed further, he said, "Well, you know what, I totally forgot about it, I'm not going to make up no excuses." Asked whether it was safe to say his annual registration obligation had "[k]ind of just skipped [his] mind," defendant answered, "Yes."

Defense counsel summed up his theory of the case in his argument to the jury: "This is a man that forgot to do what the law requires him to do. Period." Counsel added: "He has a history of registration. . . . Its in the evidence. Look at it. This is a guy that does register. In this instance, he forgot."

A jury convicted defendant of one count of violating section 290(g)(2), based on his failure to update his registration within five working days of his birthday (see § 290, former subd. (a)(1)(C); now subd. (a)(1)(D)). The jury acquitted him of a second count of violating section 290(g)(2), which count alleged he had failed to register within five days of changing his residence (§ 290, subd. (a)(1)(A)).

After denying defendant's motion for a new trial, the trial court dismissed all but one of his 10 prior strike convictions in the interests of justice pursuant to section 1385. It then sentenced appellant to state prison for a total term of nine years as follows: the upper term of three years on count 1, doubled under the three strikes law to six years, plus three consecutive one-year terms as to the prior prison terms charged pursuant to section 667.5, subdivision (b). The trial court observed that "even a technical violation of the registration requirements by a man with defendant's record is a very serious matter. . . . And with 10 prior strikes, nine of which are for the sort of conduct which, in my view, should have gotten him a life sentence when he did it, but the laws were not available to accomplish that at that time, . . . a man with that record has to be very careful to comply with all the laws and probably shouldn't spit on the sidewalk."

The Court of Appeal affirmed the judgment. "In sum, we hold that simply forgetting is not a defense to a charge of violating section 290, and [defendant's] present claim that he lacked the necessary willfulness to commit the charged offense because he forgot the annual registration updating requirement is meritless. For that reason, the trial court did not err in instructing the jury that `forgetting to register by itself does not provide a defense to a charge of willful failure to register.' The instruction was a correct statement of the law; forgetting the mandatory registration requirement of section 290 is simply not a legitimate defense to the charge of willfully failing to register. Section 290 imposes a duty upon all registrants, once they have received and understood advisement of the duty to register, to remember and fulfill that legal obligation. We do not believe the Legislature intended that a defendant could successfully evade this duty by claiming that `I totally forgot about it.'"

We affirm the judgment of the Court of Appeal.

DISCUSSION

The statutory context in which this question arises was set forth by the Court of Appeal. "As amended in 1996, 1997 and 1998, and in effect at the time appellant registered in August 1999, section 290 provided in pertinent part that every person convicted of an enumerated sex offense is required `for the rest of his . . . life while residing in . . . California . . . to register . . . within five working days of coming into, or changing his . . . residence or location within, any city, county, or city and county . . . in which he . . . temporarily resides.' (§ 290, former subd. (a)(1)(A), as amended by Stats. 1996, ch. 909, § 2; Stats. 1997, ch. 821, § 3; Stats. 1997, ch. 821, § 3.5; and Stats. 1998, ch. 930, § 1.1; see § 290, present subd. (a)(1)(A).) In addition, `[b]eginning on his . . . first birthday following registration or change of address, the person shall be required to register annually, within five working days of his . . . birthday, to update his . . . registration . . ., including, verifying his . . . name and address, or temporary location, on a form as may be required by the Department of Justice.' (§ 290, former subd. (a)(1)(C), as amended by Stats. 1997, ch. 821, § 3.5 and Stats. 1998, ch. 930, § 1.1; see § 290, present subd. (a)(1)(D).) A person required to register because of a felony conviction who `willfully violates' the registration provisions `is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years.' (§ 290, former subd. (g)(2), as amended by Stats. 1994, ch. 867, § 2.7; see now § 290, present subd. (g)(2).)"

People v. Cox (2002) 94 Cal.App.4th 1371, 115 Cal.Rptr.2d 123 (Cox) was the first case to address the question whether just forgetting to register may negate the willfulness requirement of section 290(g)(2). Cox held, "Once a person is made aware of the registration responsibility, he or she may not defend on the basis that the requirement simply `slipped' his or her mind." (Cox, at p. 1377, 115 Cal. Rptr.2d 123.)

In reaching this conclusion, the Cox court found our decision in People v. Garcia (2001) 25 Cal.4th 744, 107 Cal.Rptr.2d 355, 23 P.3d 590 (Garcia) distinguishable. In Garcia, the defendant contended the trial court prejudicially erred in failing to make clear in its instructions to the jury that "a `willful' failure to register requires a finding that [a defendant] actually knew about his duty to register." (Id. at p. 751, 107 Cal.Rptr.2d 355, 23 P.3d 590.) The Attorney General responded that "actual knowledge is not an element of the offense, and that it was sufficient to find that the appropriate officers notified defendant of his duty, as required by section 290." (Ibid.)

We agreed with the defendant in Garcia. "In a case like this, involving a failure to act, we believe section 290 requires the defendant to actually know of the duty to act. Both today and under the version applicable to defendant, a sex offender is guilty of a felony only if he `willfully violates' the registration or notification provisions of section 290. (290, former subd. (g)(3), as amended by Stats. 1994, ch. 867, 2.7, p. 4393; 290, present subd. (g)(3).) The word `willfully' implies a `purpose or willingness' to make the omission. (7.) Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. As stated in People v. Honig (1996) 48 Cal.App.4th 289, 334, 55 Cal.Rptr.2d 555, `the term "willfully" . . . imports a requirement that "the person knows what he is doing." [Citation.] Consistent with that requirement, and in appropriate cases, knowledge has been held to be a concomitant of willfulness. [Fn. omitted.]' Accordingly, a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (Garcia, supra, 25 Cal.4th at p. 752,107 Cal.Rptr.2d 355, 23 P.3d 590.) We concluded, however, the potentially misleading instructions given the jury with regard to the actual knowledge requirement were harmless beyond a...