People v. Cluff

• Decision Date: 14 March 2001
• Docket Number: No. A086125.,No. A090342.,A086125.,A090342.
• Citation: 105 Cal.Rptr.2d 80,87 Cal.App.4th 991
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alan Ross CLUFF, Defendant and Appellant. In re Alan Ross Cluff, on Habeas Corpus.

105 Cal.Rptr.2d 80

87 Cal.App.4th 991

The PEOPLE, Plaintiff and Respondent, v. Alan Ross CLUFF, Defendant and Appellant In re Alan Ross Cluff, on Habeas Corpus.

No. A086125.

No. A090342.

Court of Appeal, First District, Division 3.

March 14, 2001.^*

Richard Such, First District Appellate Project, for Appellant.

Bill Lockyer, Attorney General; David P. Druliner, Chief Assistant Attorney General; Ronald A. Bass, Senior Assistant Attorney General; Laurence K. Sullivan Supervising Deputy Attorney General; Rene A. Chacon, Supervising Deputy Attorney General, for Respondent.

PARRILLI, J.

In a court trial, Alan Ross Cluff was convicted of failing to comply with the sexual offender registration scheme. (Pen.Code, § 290.)¹ In addition, the court found Cluff had suffered three prior "strikes" under the Three Strikes law and had served a prior prison term. Cluffs motion to strike the prior conviction allegations was denied, and "with a heavy heart" the court sentenced him to 25 years to life in prison.

This case involves the most technical violation of the section 290 registration requirement we have seen. Cluff registered with the chief of police in the jurisdiction where he was living, and continuously resided at the same address until his arrest on the current charge. Thus, he did not violate the requirement that he register after moving to a city or changing his "residence or location" within the city. (§ 290, subd. (a)(1)(A).) Instead, Cluff failed to comply with the separate requirement that he annually "update" his registration within five days of his birthday. (§ 290, subd. (a)(1)(D).) The Legislature added an annual registration requirement in 1995, five years after Cluff was released from prison. It was Cluff's failure to annually confirm that his address had not changed that triggered his liability under section 290 and led to his 25-years-to-life prison term.

Cluff raises a total of 10 issues in this appeal and a consolidated petition for writ of habeas corpus. We reject the bulk of his arguments and affirm his conviction.

However, we conclude the trial court abused its discretion when it denied Cluff's motion to strike one or more of his priors. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero).) Therefore, we vacate the sentence and remand for a new Romero hearing.

I BACKGROUND

The registration requirement in this case stemmed from Cluff's convictions on nine counts of lewd and lascivious conduct with a child under the age of 14. Cluff was sentenced to a total term of nine years for those offenses. He was released from prison in 1990. At that time, prison officials informed him of his lifetime obligation to register as a sex offender. Cluff registered a number of times after changing his residence over the next five years. In October 1995, Cluff moved to the city of San Mateo. On October 18, 1995, he went to the San Mateo police department and registered as section 290 requires. The registering officers (Jacobson and Pierucci) interviewed Cluff, took his photograph and fingerprints, and listed his address, occupation, and other identifying information on the registration documents. Cluff gave his address as 1408 South Norfolk Street in San Mateo.

When Cluff registered in October 1995, Officer Jacobson gave him a form explaining the requirements for registration. Cluff signed the form, which specifically advised him that he was required to update his registration annually within (at that time) 10 days of his birthday. This was a new requirement that came into effect on January 1, 1995. It was not highlighted on the form, and Cluff did not receive a copy of the form. However, it was Officer Jacobson's habit to orally summarize the registration requirements, including the requirement that the offender update his registration annually.²

Officer Jacobson gave Cluff a temporary "compliance receipt" that had a summary of the section 290 registration law printed on the back. However, the summary did not include the new requirement that the offender update his registration annually. Similarly, Cluff's fingerprint card prepared at the time of the October 1995 registration had a summary of the registration requirements printed on the back that did not mention the annual updating requirement.

Except for a four-month period in 1996 when Cluff was helping his sister relocate to Utah after her husband died, he continued to live as a renter at 1408 South Norfolk Street in San Mateo. While he was in Utah, Cluff made rent payments to keep his room in his landlord's house.

In October 1997, Sergeant Callagy of the San Mateo Police Department learned that Cluff had not updated his registration during the period around his birthday (July 29) in 1996 and 1997. On October 23, 1997, Callagy went to 1408 South Norfolk Street and met with Cluff's landlord. The landlord confirmed that Cluff still lived at that address, and said he would have Cluff call Callagy when he returned. Cluff called Callagy the next day, and offered to come in immediately. Callagy told Cluff he needed to come to the police station to register, but that he need not come in that day. Cluff asked whether he would be arrested. Callagy said no. They made an appointment for October 27th.

When Cluff arrived at the police station for his appointment on October 27, Sergeant Callagy immediately arrested him for violating section 290. After Callagy advised Cluff of his Miranda rights, he asked Cluff if he knew he had to register annually with the police department. Cluff said he "understood his requirements to register." When Callagy asked him why he did not register, Cluff had no answer. When Cluff asked if he could register that day (October 27), Callagy said he could not, and would have to make a separate appointment to come back to update his registration. To Callagy's knowledge, Cluff had not done so by the time of trial in December 1998, although he had registered when he moved to Patterson, California sometime in the first part of 1998.

The District Attorney charged Cluff in a one-count information as follows: "On or about 10/23/1997, Alan Ross Cluff being a person required to register as a sex offender having been previously convicted, of PC section 288A ..., did fail to register within the time limits provided, in violation of Penal Code section 290(a)(1), a felony."

The prosecution argued that Cluff violated section 290 by failing to comply with the annual "birthday" registration requirement. As the prosecutor put it, "[t]he issue is whether he knew that he had to register within the time limits annually on his birthday."

The defense argued that Cluff's "failure to re-register on his birthday was a negligent violation of the statute due to mistake of fact."

The court rendered its verdict in December 1998, observing that the evidence was insufficient to determine whether Cluff's failure to register was "negligent as opposed to intentional." However, the court ruled that Cluff received sufficient notice of the annual registration requirement to satisfy any due process concerns. The court found him guilty as charged.

At the sentencing hearing in February 1999, the court considered the probation officer's report, the report of a court-appointed psychotherapist, and the arguments of counsel, before denying Cluff's Romero motion and sentencing him to a term of 25 years to life.³

II DISCUSSION

Cluff raises seven issues in this appeal and three additional issues in a consolidated habeas corpus petition. G. Denial of the Motion to Strike.^**

Although Cluff casts his argument as a challenge to the constitutionality of his punishment, he actually argues two related points: (1) his sentence is unconstitutional because it is so disproportionate to his conduct that it "shocks the conscience and offends fundamental notions of human dignity" (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921); and (2) the court abused its discretion by not recognizing this, and failing to strike one or more of the prior convictions.

We note Cluff received his 25-years-to-life term not for the current offense alone, but because he had committed prior serious or violent felonies. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630, 47 Cal. Rptr.2d 769.) He is being punished for his recidivism, not merely for the current offense. Other courts have determined that, as a general matter, the punishment imposed by California's Three Strikes law is not so disproportionate that it violates the prohibition against cruel or unusual punishment. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512-1517, 84 Cal. Rptr.2d 638 [citing cases].) Thus, we need not revisit that issue.

However, we conclude the court abused its discretion at the Romero hearing, because substantial evidence does not support the critical inference the court relied on in denying the motion to strike. Since we will vacate the sentence, we need not consider Cluffs arguments that the punishment is cruel and unusual.

1. Governing Law

The Supreme Court has set out guidelines for lower courts to apply in deciding whether to strike a prior Three Strikes conviction under Romero. The touchstone for that determination is whether "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161, 69 Cal.Rptr.2d 917, 948 P.2d 429; People v. Garcia (1999) 20 Cal.4th 490, 498, 85 Cal. Rptr.2d 280 976 P.2d 831; People v. Stone (1999) 75 Cal.App.4th 707, 717, 89 Cal.Rptr.2d 401.)

Our Supreme Court has also made it clear that appellate review of a trial court's decision on a ...