People v. Moss

• Decision Date: 23 May 2003
• Docket Number: No. C039117.,C039117.
• Citation: 134 Cal.Rptr.2d 432,109 Cal.App.4th 56
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clyde Sherwood MOSS, Defendant and Appellant.

134 Cal.Rptr.2d 432

109 Cal.App.4th 56

The PEOPLE, Plaintiff and Respondent, v. Clyde Sherwood MOSS, Defendant and Appellant.

No. C039117.

Court of Appeal, Third District.

May 23, 2003.

Review Granted August 13, 2003.

Louis Marinus Wijsen, under appointment by the Court of Appeal, Alameda, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

SCOTLAND, P.J.

As required by subdivision (a)(1)(A) of Penal Code section 290, defendant Clyde Sherwood Moss registered as a convicted sex offender when he moved to Red Bluff in May 2000. But he failed to update the registration within five working days of his birthday the next year, as required by subdivision (a)(1)(D) of Penal Code section 290. (Further section references are to the Penal Code unless otherwise specified.)

Six working days late, defendant went to the Red Bluff Police Department to update his registration, saying that he had forgotten to do so on time. He was arrested and prosecuted under subdivision (g)(2) of section 290, which makes it a crime to "willfully" violate any sex offender registration requirement of section 290.

At trial, defendant's position was that he simply forgot to update his registration on time and that, when he remembered his obligation to do so, he immediately drove to the police department and attempted to register. However, the court would not allow him to introduce the testimony of four witnesses, corroborated by a Tehama County Mental Health Department report, to establish that he had borderline intellectual functioning and was forgetful. The court also refused defendant's request to instruct the jury that the term "willfully" in subdivision (g)(2) of section 290 "imports a requirement that the person knows what he is doing." Defendant was found guilty, and he was committed to state prison.

On appeal, defendant contends the court committed prejudicial error in excluding the proffered evidence and refusing the requested instruction. We agree.

For reasons that follow, we part company with Division One of the Fourth Appellate District (People v. Cox (2002) 94 Cal. App.4th 1371, 115 Cal.Rptr.2d 123)¹ and conclude that genuinely forgetting to comply with a sex offender registration requirement is a defense to the charge of violating subdivision (g)(2) of section 290. Because the challenged rulings in this case precluded defendant from being able to effectively present this defense, we shall reverse the judgment.

DISCUSSION

I

A

Section 290 imposes a number of sex offender registration requirements upon a person who has been convicted of certain crimes. Among other things, after registering as a sex offender as required by subdivision (a)(1)(A) of section 290, the person must annually update the registration within five working days of his or her birthday. (§ 290, subd. (a)(1)(D).)

The Legislature has specified that, when a person required to register as a sex offender based on a felony conviction "willfully violates any requirement" of section 290, the person "is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years." (§ 290, subd. (g)(2).)

This case poses the question of what the Legislature had in mind when it coined the phrase "willfully violates any requirement" of the sex offender registration statute. Specifically, we are asked to decide whether a convicted sex offender who knows of the requirement annually to update his registration, but who forgets to do so, has "willfully" violated this requirement. In other words, we must decide whether there is an "I forgot" defense to a failure to update one's sex offender registration.

In the context of section 290, subdivision (g)(2), "willfully" means "a purpose or willingness to ... make the omission" (§ 7), which means that the defendant "`"knows what he is doing"`" (People v. Garcia (2001) 25 Cal.4th 744, 752, 107 Cal.Rptr.2d 355, 23 P.3d 590 (hereafter Garcia), quoting People v. Honig (1996) 48 Cal.App.4th 289, 334, 55 Cal.Rptr.2d 555).

As we will explain, this element of willfulness requires that, when failing annually to update registration as a sex offender, the defendant knows that he is not complying with the statutory requirement. Accordingly, if defendant did, in fact, forget to update the registration, that would be a defense to the charge.

B

"[U]nless otherwise apparent from the context" of a statute defining a crime, "[t]he word `willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (§ 7.)

As noted in Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 28 Cal.Rptr.2d 371, "willfulness" is a slippery term. (Id. at p. 183, 28 Cal. Rptr .2d 371.)

"Although Penal Code section 7, subdivision 1 states willfulness is `simply a purpose or willingness to commit the act, or make the omission referred to,' there is no shortage of cases construing the term, in penal statutes, as conveying more than mere volition." (Kwan v. Mercedes-Benz of North America, Inc., supra, 23 Cal. App.4th at p. 182, 28 Cal.Rptr.2d 371; accord, People v. Hagen (1998) 19 Cal.4th 652, 663, 80 Cal.Rptr.2d 24, 967 P.2d 563.)

For example, in the federal offense of willfully failing to supply information for the assessment of income tax, willfulness means the omission was dishonest, deceitful, or fraudulent, not merely negligent, inadvertent, or an honest mistake. (Murrill v. State Board of Accountancy (1950) 97 Cal.App.2d 709, 710, 713, 714, 218 P.2d 569.) Likewise, in the felony offense of willfully making and subscribing a tax return without belief in its material truth, the element of willfulness requires proof that the defendant made the perjurious statement "in voluntary, intentional violation of a known legal duty." (People v. Hagen, supra, 19 Cal.4th at pp. 658-659, 666, 80 Cal.Rptr.2d 24, 967 P.2d 563; see also People v. Von Tiedeman (1898) 120 Cal. 128, 135, 52 P. 155 [h, a perjury prosecution for making an unqualified statement of a matter that the defendant did not know to be true (§ 125), the willful element of perjury (§ 118) requires proof that the defendant made such a statement "with the consciousness that he did not know that it was true, and with the intent that it should be received as a statement of what was true in fact"].)

"Similarly, where the crime involves harm or the risk of harm to another, willfulness has been interpreted to imply knowledge of harm or conscious disregard of safety. (See, e.g., People v. Odom (1937) 19 Cal.App.2d 641, 645-646 [in charging violation of hit-and-run statute, `willfully' implies knowledge driving had caused the injury or death of a person]; People v. McNutt (1940) 40 Cal. App.2d Supp. 835, 837-838 [in reckless driving statute, `willful' refers to intentional disregard of safety, not merely to intentional performance of the unsafe act].)" (Kwan v. Mercedes-Benz of North America Inc., supra, 23 Cal. App.4th at p. 182, 28 Cal.Rptr.2d 371.)

Thus, context is crucial in determining the meaning of the term "willfully." (Garcia, supra, 25 Cal.4th at p. 753, 107 Cal.Rptr.2d 355, 23 P.3d 590; People v. Hagen, supra, 19 Cal.4th at pp. 663-666, 80 Cal.Rptr.2d 24, 967 P.2d 563.)

C

The section 7 definition of "willfully" is most easily applied where one undertakes an affirmative act. For example, if a person walks across a street in the middle of the block in broad daylight, we ordinarily can say the person has "a purpose or willingness to commit the act," such that he or she is guilty of jaywalking even though the person has no intention to violate the law.

The concept of willfully omitting to do an act, as presented in this case, is more difficult.

At least one thing is clear—the California Supreme Court has held that "actual knowledge" of the sex offender registration requirement is essential for a valid conviction for the willful failure to register as required by section 290. (Garcia, supra, 25 Cal.4th at p. 754, 107 Cal.Rptr.2d 355, 23 P.3d 590.)

In People v. Cox, supra, 94 Cal.App.4th 1371, 115 Cal.Rptr.2d 123 (hereafter Cox), Division One of the Fourth Appellate District held that, as long as a convicted sex offender has actual knowledge of the requirement to register within five working days of changing his residence or annually to update the registration within five working days after his birthday, he "willfully" violates the statute even if he simply forgets to meet the deadline. (Id. at pp. 1376-1377, 115 Cal.Rptr.2d 123.) The court reasoned: "Forgetting presupposes knowledge.... Human beings store in their brains a myriad of facts. At any given time the vast majority of those facts are in storage waiting for some cue to bring them to conscious recognition. A spouse may forget a wedding anniversary, a patient a medical appointment; such lapses arise not from a lack of actual knowledge but a failure to respond to cues. Persons keep calendars and appointment books, ask others to remind them of duties and obligations and tie strings around their fingers all to insure that important responsibilities are met. We conclude that within this context one willfully fails to register when possessed of actual knowledge of the requirement he or she forgets to do so. [¶] We think it is inconceivable the Legislature could have intended otherwise." (Id. at p. 1376, 115 Cal.Rptr.2d 123.)

The Cox analysis is not persuasive. Based on common experience and common sense, it is counter-intuitive to say that a person who simply forgets a wedding anniversary willfully insults his or her spouse. Indeed, although it is not a felony punishable by a commitment to...