People v. Barker
| Decision Date | 18 March 2003 |
| Docket Number | No. A093759.,A093759. |
| Citation | 107 Cal.App.4th 147,131 Cal.Rptr.2d 801 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Donald BARKER, Defendant and Appellant. |
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, René A. Chacón and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Donald Barker of one count of willful failure to register as a sex offender within five working days of his birthday, in violation of Penal Code section 290, subdivision (g)(2).1 Having dismissed in the interests of justice nine of appellant's ten prior convictions for purposes of the Three Strikes Law, the court sentenced him to state prison for a total term of nine years. On appeal, appellant contends we must reverse his conviction because (1) the trial court failed to instruct the jury correctly on the knowledge element of a section 290 violation; (2) the trial court erred prejudicially by instructing the jury that forgetting the statutory registration requirement was not a defense to the charge; (3) the trial court denied appellant's due process rights by so instructing the jury after it had allowed appellant to base his defense on having forgotten to register; and (4) there was insufficient evidence independent of his own extrajudicial admissions to establish the actual date of appellant's birthday for purposes of conviction. We conclude that to the extent the trial court did err in instructing the jury, any possible error was not prejudicial beyond a reasonable doubt; the trial court's instruction on forgetting was neither erroneous nor misleading; appellant waived his objection to the use of his own extrajudicial admissions to establish the date of his birth; and there was sufficient evidence to support appellant's conviction without reference to his own extrajudicial statements. We therefore affirm the judgment.
Appellant was convicted of forcible rape in March 1979. As a result of this conviction, he was required pursuant to section 290 annually to update his registration as a sex offender with the police department of the jurisdiction in which he resided. As reflected by the records of the San Mateo City Police Department, as stated on appellant's probation report, and as admitted by appellant himself, appellant's date of birth was March 5, 1950. At the time relevant to this case, appellant was consequently obliged under the terms of section 290 to update his sex offender registration within five working days of March 5 every year.
As shown by the files of the California State Department of Justice and the San Mateo City Police Department, appellant registered five times as a sex offender with different jurisdictions, most recently with the San Mateo Police Department on August 26, 1999. The registration form signed by appellant on that date states that his date of birth was March 5, 1950, and his place of residence was 15 Ninth Avenue in San Mateo. It was the standard procedure in the San Mateo City Police Department to go over the notification material on the registration form with registrants before they signed and initialed it.
Immediately over appellant's signature on the form is a printed statement expressly declaring appellant's actual understanding of his mandatory obligations under section 290. In pertinent part, this statement is as follows: On another form entitled "Registration Change of Address/Annual Update," appellant again signed a statement stating that "I have been notified of my duty to register" as a convicted sex offender under section 290. On the reverse of this form, appellant initialed 16 specific statements acknowledging that he had received notice that, among other things, his "responsibility to register is a lifetime requirement"; he was required to register as a sex offender within five working days with the local law enforcement agency having jurisdiction of his residence every time he changed his address; and that he must annually, within five working days of his birthday, update his registration at the law enforcement agency having jurisdiction over his location or place of residence.
In early March 2000, San Mateo Police Officer Al Baccei was assigned to process the registration of convicted sex offenders within the jurisdiction of the San Mateo Police Department. While checking to see if the Department's sex offender registrations were current, he noticed that appellant's birthday was March 5. As a result, the "window" for appellant to register was from Monday, February 28, 2000, through Friday, March 10, 2000.
On Monday, March 13, 2000, after appellant had failed to register within the statutory time period, Officer Baccei attempted to telephone him at his last known address at Project 90, a men's residential alcohol and recovery program where appellant had been living since August 1999. Appellant returned Officer Baccei's telephone call about 15 minutes later. They arranged to meet each other at the Police Department later that same day to discuss appellant's registration.
Appellant came to the Police Department within an hour of the telephone call. Officer Baccei's interview with appellant was tape recorded and subsequently transcribed. In the interview, appellant affirmed that his date of birth was March 5, and acknowledged that he was required to comply with the annual registration requirement within five days of his birthday. Asked why he had not called to make an appointment to register, appellant said it was Although appellant acknowledged his awareness that he was required "once a year" to register "on my birthday," he failed to do so this time because he was "too busy." Appellant further explained: "Well, you know what, I totally forgot about it, I'm not going to make up no excuses." In addition, appellant told Officer Baccei that although he had been living at 15 Ninth Avenue when he last registered on August 26, 1999, he had moved to 14 South Norfolk Avenue about a month before the date of the interview on March 13, 2000. Appellant acknowledged knowing that he was required to notify the Police Department whenever he changed his residence. Asked whether he had failed to notify the police about this change of address because he "[j]ust forgot or [was] too busy," appellant stated that he had "no excuse" for his failure. Asked if the police had read the registration requirements to him the last time he had updated his registration, appellant denied that they had been read to him. Appellant acknowledged having read the requirements before signing and initialing the form, "but vaguely." Officer Baccei placed appellant under arrest for failing to register in accordance with the time requirements of section 290.
David Meeds, program director at Project 90, testified that both 15 Ninth Avenue and 14 South Norfolk Avenue were addresses of rehabilitation facility residences at which appellant had been housed since joining the program in August 1999. He also explained that after successfully completing the program in December 1999, appellant had received special training and become a house manager. In his defense, appellant offered the testimony of Meeds and James Stansberry, the executive director of Project 90, regarding appellant's duties as house manager and his full schedule involving 16 to 18 hours of work on a typical work day.
By information filed on April 10, 2000, and amended on October 11, 2000, appellant was charged with two counts of willfully failing to register as a sex offender in violation of section 290, subdivision (g)(2), with 10 prior convictions alleged for purposes of the Three Strikes Law and three priors alleged for purposes of section 667.5, subdivision (b). Count one charged appellant with failing to update his registration within five working days of his birthday; count two charged him with failing to do so within five working days of changing his residence.
Jury trial commenced on October 10, 2000. On October 13, the jury found appellant guilty of failing to register within five working days of his birthday as charged in count one, but acquitted him of the charge in count two. Appellant waived jury trial on the priors, and the trial court found all the alleged prior convictions true. After denying appellant's motion for a new trial, the trial court dismissed all but one of appellant's 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 one, 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). This appeal timely followed.
Appellant first contends that the trial court erred in violation of the federal and state constitutions by failing to give correct jury instructions on the element of knowledge, and instead instructing that ignorance of or forgetting the law is not a defense to a charge of violating the registration requirements under section 290. We conclude the instructions given by the...
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...willfulness for purposes of a charge of violating the registration updating requirement of section 290." (People v. Barker (2003) 107 Cal.App.4th 147, 160, 131 Cal.Rptr.2d 801.) SCOTLAND, P.J., Having authored the majority opinion, I write separately in response to my colleague's dissent. A......
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...p. 219, 127 Cal.Rptr.2d 662, quoting Garcia, supra, 25 Cal.4th at p. 754, 107 Cal.Rptr.2d 355, 23 P.3d 590.) In People v. Barker (2003) 107 Cal.App.4th 147, 131 Cal.Rptr.2d 801, review granted June 11, 2003, SI 15438, a divided panel of this division reached a contrary 6. The court also not......