People v. Chavez, A119926 (Cal. App. 6/12/2009)

• Decision Date: 12 June 2009
• Docket Number: A119926.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ALBERTO CHAVEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. ALBERTO CHAVEZ, Defendant and Appellant.

A119926.

Court of Appeal of California, First Appellate District, Division One.

June 12, 2009.

Not to be Published in Official Reports

Appeal from the Solano County Super. Ct. No. FCR-242965.

GRAHAM, J.^*

Defendant was convicted following a jury trial of a felony a violation of Penal Code former section 290, subdivision (a)(1)(D), and a misdemeanor violation of Penal Code former section 290, subdivision (a)(1)(C).¹ He received a state prison term of 16 months for the felony conviction and a concurrent 16-month term for the misdemeanor conviction. Defendant claims in this appeal that he was improperly charged with a violation of section 290, subdivision (a)(1)(D), and convicted of that offense without sufficient evidence that he had a residence or suffered a prior felony conviction. He also challenges the jury instruction on the section 290, subdivision (a)(1)(C) offense, and the sufficiency of the evidence to support that conviction. We find that the convictions are supported by substantial evidence, and no prejudicial instructional error occurred. We agree with defendant that an unauthorized sentence was imposed on Count 2, and vacate that sentence, but otherwise affirm the judgment.

STATEMENT OF FACTS

A stipulation was entered at trial that defendant "has previously been convicted of an offense that requires him to register as a sex offender pursuant to Penal Code section 290." Detective William Shaffer of the Fairfield Police Department (Department) assisted defendant with his sex offender registration on January 5, 2007. Defendant informed the officer that he was "transient or homeless at that time" and "kind of staying between a couple different places" he identified: the home of his sister Lourdes Rodelo on Park Lane in Fairfield, and the residence of a "girlfriend" Lida Osorino and his son on Meadows Street in Vacaville. Detective Shaffer read to defendant each provision of the Registration Notification Statement (Statement), which advised him of the registration requirements, including the duty to register annually within five working days of his birthday with the law enforcement agency having jurisdiction over his residence or his current registration as a transient. Defendant was also notified by the officer and in the Statement that he must update his registration every 30 days with the law enforcement agency having jurisdiction over the location of his physical presence as a transient. When asked by the officer, defendant stated that he understood the provisions of the Statement and initialed each of them. Both defendant and Detective Shaffer signed the Statement. Detective Shaffer then submitted the Statement to the records division of the Department so defendant was "entered into the system as a registrant."

Nancy DiGiovanni, police technician with the Department, received the Statement and other records of defendant's registration from Detective Shaffer in January of 2007. She entered the records into the computer system database. Defendant's birthday was April 8, so he was required to register within five days before or after that date every month. DiGiovanni testified that defendant registered on February 5 and March 6, 2007, on both occasions as a transient. On April 9, 2007, DiGiovanni received a telephone message from defendant on her "recorder," and subsequently entered in his records that he "was possibly out of state." Defendant neither registered nor contacted DiGiovanni after that date.

Officer David Novelli of the Vacaville Police Department contacted defendant on May 11, 2007, in front of Lida Osorino's residence in Vacaville. Officer Novelli was aware that defendant had an "outstanding warrant" in "another case," so he immediately arrested him.

Defendant testified in his defense that he did not live with Orsorino or his sister in 2007. According to defendant he slept in a park, in cars of friends, or "different places" in Fairfield and Vacaville, to remain close to his girlfriend Osorino and his son. Defendant had registered monthly for the past five years, primarily as a transient "in Vacaville." He was aware of the monthly registration requirement.

On April 8, 2007, defendant "was going out of the country" to attend his grandmother's funeral in Mexico.² He called the Department twice from Osorino's residence to leave telephone messages that he would be "out of the country." Defendant knew that "by law" he was required to register, and would have done so if he had not been in Mexico. Defendant returned on May 3, 2007. The next day he visited Osorino's residence to see his son. He got "into an argument" with Osorino, which resulted in an appearance by the police there. Defendant fled before the police arrived.³

Defendant testified that he did not register promptly after his return from Mexico because he "totally forgot," although he knew he "was going to be violated for not registering," and "get arrested for it" and "other misdemeanor warrants and stuff like that." Defendant wanted to see his son again, and intended to turn himself in thereafter. Defendant went to Osorino's house again on May 11, 2007, to visit his son, whereupon he was arrested.

In rebuttal, the prosecution offered testimony from defendant's sister Lourdes Rodelo, who recalled that in the beginning of April she gave defendant a ride from her home in Fairfield to Vacaville, where she thought defendant lived with his girlfriend. Rodelo was not aware of the death of her grandmother; she "lost contact" with her family in Mexico.

Lida Osorino testified that between January and May of 2007, defendant was "in and out" of her residence to "see his son." Defendant did not disclose the nature of "his business" to Osorino. He just visited to "see his baby, and that's it." Osorino recalled the event on May 4, 2007, when defendant was "having dinner" at her house and she "had to call the police." Defendant was also at her home "two or three days" or a "couple of weeks" before that, although she did not specifically recall the date.

DISCUSSION

I. The Conviction of a Violation of Section 290, Subdivision (a)(1)(D).

Defendant presents a two-pronged challenge to his conviction of a violation of section 290, subdivision (a)(1)(D): first, that inadequate evidence "of the `residence' element" of the statutory violation was presented; and also, that as a "transient" he "should have been charged" instead with a violation of subdivision (a)(1)(C)(iii).<sup>4</sup> Defendant claims that subdivision (a)(1)(D) applied "only to persons with residences," whereas subdivision (a)(1)(C)(iii) was a "special provision, applicable particularly to `transient' registrants." He therefore argues that in light of the lack of "substantial evidence that he had a residence," he was "prosecuted under the wrong provision" and his conviction cannot stand.

Before we confront the two related arguments we briefly examine the statutory sex offender registration scheme in the context of the present case. "Section 290 `applies automatically to the enumerated offenses, and imposes on each person convicted a lifelong obligation to register.' [Citations.] Registration is mandatory [citation], and is `not a permissible subject of plea agreement negotiation' [citation]." (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) "At the time of the alleged offense, section 290 stated in pertinent part: `(a)(1)(A) Every person [who is required to register], for the rest of his or her life while residing in California, . . . shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department . . . within five working days of coming into, or changing his or her residence within, any city, county, or city and county . . . .' (Stats. 2005, ch. 704, § 1, ch. 722, § 3.5, . . .)" (People v. Williams (2009) 171 Cal.App.4th 1667, 1672, italics omitted.) Subdivision (a)(1)(C), articulated the registration requirements for a person "living as a transient in California," including: registration in the jurisdiction where the transient is "physically present" upon release from custody; reregistration no less than once every 30 days thereafter; registration upon moving into a residence; and an annual update of registration with "current information" each year "within five working days of his or her birthday" in the jurisdiction where he or she is physically present. Subdivision (a)(1)(D) provided: "Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subparagraph (A)."⁵

A. The Evidence to Support a Conviction of a Violation of Section 290, Subdivision (a)(1)(D).

Proceeding out of chronological order, we first confront defendant's claim that the evidence fails to prove a violation of subdivision (a)(1)(D). Defendant complains that "subdivision (a)(1)(D) requires persons annually to update with the entities with which they are registered at their residences under subdivision (a)(1)(A)," and does not apply to transients. Thus, his argument proceeds, without substantial evidence that he "had a residence" or had previously "registered with the entity having jurisdiction over that residence," his conviction for a violation of subdivision (a)(1)(D) must be reversed.

Our role as "an appellate court in reviewing the sufficiency of the evidence is limited." (People v. Ceja (1993) 4 Cal.4th 1134, 1138; see also People v. Lewis (2001) 25 Cal.4th 610, 643-644; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) "[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the...