People v. Lecorno

• Decision Date: 13 June 2003
• Docket Number: No. A096250.,A096250.
• Citation: 135 Cal.Rptr.2d 775,109 Cal.App.4th 1058
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Douglas Henry LeCORNO, Defendant and Appellant.

135 Cal.Rptr.2d 775

109 Cal.App.4th 1058

The PEOPLE, Plaintiff and Respondent, v. Douglas Henry LeCORNO, Defendant and Appellant.

No. A096250.

Court of Appeal, First District, Division 3.

June 13, 2003.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Eric D. Share, Nancy H. Tung, Deputy Attorneys General, for Plaintiff and Respondent.

Richard Such, under appointment by the Court of Appeal, for Defendant and Appellant.

POLLAK, J.

Defendant Henry Douglas LeGorno appeals from his conviction for failing to register as a sex offender under Penal Code section 290.¹ Defendant duly registered his residence address in San Francisco but did not register as a second residence the home of a friend in San Mateo where he often stayed while doing construction work at the home. He contends his conviction must be reversed because (1) he was found guilty of a nonexistent offense; (2) the trial court refused to instruct the jury that defendant willfully violated the statute only if he knew that he was required to register the San Mateo address, and in response to questions from the jury told them that such knowledge was not necessary; (3) the trial court improperly instructed the jury concerning the use of circumstantial evidence as it applies to the mental state required for the registration offense; and (4) the court abused its discretion by failing to dismiss all of his prior strikes and by imposing the upper term on the registration offense. We reject defendant's first contention, but agree that the trial court committed prejudicial instructional error with respect to the knowledge that is required to establish a violation of section 290. Accordingly, we shall reverse the conviction and do not reach defendant's contentions concerning his sentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by information with failing to register as a sex offender in violation of section 290, subdivision (a)(1), between August 1 and October 24, 2000. Defendant was also charged with three prior felony convictions under section 1170.12, subdivision (c)(2), and two prior prison term enhancements under section 667.5. At trial, the parties stipulated that defendant's prior conviction for statutory rape required him to register as a sex offender under section 290.

Officer Ariel Maracha testified that he was responsible for registering sex offenders for the San Francisco Police Department and that on July 7, 2000, he had helped defendant register. He described the registration process generally, which involves having the registrants fill out the front of a standard form and read and initial certain advisements on the back of the form. The back of the form advised the registrant, "If I have more than one residence address or location, I must register all addresses and/or locations with the agency or agencies having jurisdiction over them." Maracha explained that as part of the typical registration process, after the registrant fills out the form, "We ask the subjects if any questions that arise, and we basically try to explain to them in a simple matter in terms of explaining what the statements are in the back of the form." On cross-examination, Maracha explained that if a registrant asks what is meant by "residence," he responds, "Well, that's where a person lives at that moment of time." He also acknowledged he had told some registrants that residence means "where you spend the most time." He could not remember, however, whether he had told that to defendant.

The prosecutor offered into evidence an enlarged copy of the form filled out by defendant on July 7, 2000. On the form, defendant listed his address as 1831 Santiago Street in San Francisco. He listed the same address on a second line that asked for the registrant's "concurrent" address. Defendant initialed that he had read and understood the advisement on the back of the form regarding multiple residences. Defendant filled out this standard form in the same way when he registered again on October 11, 2000.

Sometime in July 2000, while residing at the Santiago Street address that he had listed on the registration form, defendant visited his friends, Cheryl and Ron Meagher, at their home in San Mateo. During that visit he agreed to help convert the basement of the home into a room for the Meaghers' son. Ron and defendant began working on the project a few weeks later. Ron offered to let defendant sleep on the floor and for the next few weeks defendant spent one or two nights a week on the Meaghers' floor. On August 16, 2000, defendant moved some of his belongings out of a rented storage locker and into the basement. A few days later, the Meaghers moved a bed into the basement for defendant to sleep on when he spent the night. Defendant stayed at the house from August 19 to 26, while the Meaghers were on vacation, and when they returned he stayed at their home three to four nights a week. Ron testified that defendant had received some mail there but that he had told defendant to have his mail sent to his San Francisco address. After defendant told Ron that he was having some problems with his San Francisco address because someone had found out about his sex offender status, defendant began staying in San Mateo four to five nights a week. The Meaghers testified that they assumed defendant would stay at their home until December when the basement room was finished and their son moved into it.

Inspector Jim Zerga of the San Francisco Police Department testified that he went to defendant's San Francisco residence on October 20, 2000, to investigate defendant's compliance with the registration requirements. Defendant's landlord said he lived there, but that he was not home. Zerga stayed at the house for four hours and returned on two other occasions but never saw defendant there. On October 23, Zerga went to defendant's place of employment and defendant's employer told him that while defendant used the Santiago Street address on his job application, he was actually living with friends near Redwood City. Zerga investigated and eventually located defendant at the Meaghers' home in San Mateo. On October 25, the police executed a search warrant on the San Mateo home. In the basement room detectives found several letters with return addresses bearing defendant's name and the San Mateo address. They also found a checkbook with checks bearing defendant's name and the San Mateo address. The police arrested defendant that night.

Defendant called a number of witnesses who testified that he lived in San Francisco. Defendant also testified in his own defense. He explained that he moved his belongings out of storage and into the Meaghers' home to save money and to give him some space to sort through and throw away things he no longer wanted. He disputed that he spent more than two to three nights a week at the Meaghers' house, and explained that he started sleeping in San Mateo only because he was staying up late working on the basement and was too tired to drive home. He also testified that while he wrote the letters using the San Mateo return address, he was just playing on Ron's computer and was not going to mail the letters because they had the San Mateo address on them.

With regard to his understanding of the registration requirements, defendant testified that when he registered in July 2000, he had a conversation with Maracha about the definition of residence. Maracha told him, "where you spend the most time is where you register." He said that he originally asked what was considered a residence because he was thinking of starting a business and wanted to know whether it would be considered a residence if he slept there some nights. He also testified he later returned to the police department to confirm his understanding of the requirements because he had started spending a few nights in San Mateo and did not want to establish a residence there because he feared the reaction of the neighbors. Cheryl Meagher testified and confirmed defendant's testimony that he was intentionally not spending too many nights at their house so as to avoid it being considered his residence.

The court instructed the jury on the crime of failing to register as follows: "Defendant is accused in count 1 of having violated Penal Code section 290, subdivision (a), subdivision (1), a felony. [¶] Any person required to register as a sex offender must register with the law enforcement agency of the city in which he or she resides within 5 working days of changing residences. [¶] If the person has more than one residence at which he or she resides, he or she must register with the law enforcement agency in each of the cities in which he or she resides. Failure to do so is a violation of Penal Code section 290(a)(1). [¶] As used in these instructions, the term residence means a temporary or permanent dwelling place which one keeps and to which one intends to return, as opposed to a place where one rests or shelters during a trip or transient visit, [¶] Depending upon the circumstances, one may have a single place of residence or more than one place of residence, [¶] One who has one place of residence and then adds a second place of residence has changed his residence within the meaning of this law and has a duty to report this change resulting in an additional residence even though he may also maintain a residence at the old place, [¶] In order to find a violation of Penal Code section 290(a)(1), each of the following elements must be proved: [¶] 1. The defendant has a prior conviction for a sexual offense; [¶] 2. As a result of that conviction, the defendant is required to register as a sex offender; [¶] 3. The defendant had actual knowledge of his duty to register as a sex offender; [K] 4. The defendant obtained a new or additional residence; [¶] 5. The defendant willfully and knowingly failed to inform in...