People v. Simon, G036593 (Cal. App. 4/25/2007)

• Decision Date: 25 April 2007
• Docket Number: G036593
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOHN GENE SIMON, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. JOHN GENE SIMON, Defendant and Appellant.

G036593

Court of Appeals of California, Fourth Appellate District, Division Three

April 25, 2007

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County, No. 05CF1649. James M. Brooks, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARONSON, J.

The juvenile court in 1998 found John Gene Simon had committed a sex offense which subjected him to the registration requirements for sex offenders under Penal Code section 290 (all statutory references are to this code unless otherwise noted). In June 2005, Simon pleaded guilty to four counts of auto burglary. The trial court granted Simon probation after Simon agreed to follow certain terms and conditions, including a six-month jail term and a promise to violate no law. The trial court found Simon violated his probation when he failed to register as a sex offender after his release from custody on the six-month jail term for the auto burglaries.

Simon appeals the trial court's finding he violated probation, arguing section 290 is unconstitutionally vague as applied to him. He also challenges the sufficiency of the evidence to support the court's finding he willfully failed to register after his release from custody. Even if sufficient evidence supports the court's order, Simon contends the court abused its discretion in revoking probation. For the reasons stated below, we affirm.

I FACTS AND PROCEDURAL BACKGROUND

In March 1998, a juvenile court found Simon committed a lewd act on a child under the age of 14. (§ 288, subd. (a).) This finding subjected Simon to the provisions of section 290, which requires persons convicted of certain sex offenses to register with their local police department. In June 2005, Simon pleaded guilty to four counts of second degree automobile burglary and one misdemeanor count of possessing burglary tools. The court suspended imposition of sentence and placed him on formal probation for three years on various terms and conditions, including service of a 180-day jail term.

In December, the probation officer filed a petition alleging Simon ran afoul of the "[v]iolate no laws" condition of his probation by failing to reregister as a sex offender after his release from local custody in September 2005.¹ Simon was also charged with a substantive offense for failing to reregister as required under section 290.

The trial court heard the probation violation in conjunction with a preliminary hearing on the new charge in December 2005. At the combined hearing, the only witness was Santa Ana Police Detective Tom Kirchmeyer, who ran the city's sex offender registration detail. According to the detective, local records and those from the Violent Criminal Information Network (VCIN), a state Department of Justice database that tracks sex offender registrations within the state, reflected Simon had last registered on April 11, 2005. Since his original release from the Youth Authority on the registrable offense, Simon had registered each year around his April 9 birthday. The original registration form Simon completed in 2002 expressly advised him to register after his release from incarceration. The registration form Simon completed in April 2005, advised him he must register within five working days after release from incarceration. Simon placed his initials next to this advisement. Jail records reflected Simon had been released from jail on September 20, 2005.

The prosecutor argued Simon violated section 290, subdivision (a)(1), when he failed to register within five days of his release from jail "because there is a change in his residence. We know where he is when he's in custody. When he leaves custody, we don't know where he is . . . ." She also argued that subdivision (e)(2) required reregistration upon release from incarceration, and that subdivision (e)(2)'s reference to "paragraph (1) of subdivision (a)," required reregistration within five days. Defense counsel interpreted section 290 to require authorities to inform Simon of the requirement to reregister upon his release. Because authorities failed to meet this obligation, Simon argued he did not violate section 290.

The court found Simon violated probation, revoked probation, and ordered him to serve a year in jail with credit for time served. The court also terminated his probation in two other cases and ordered a consecutive jail term.

II DISCUSSION

A. Standards Governing Revocation of Probation

A court may revoke and terminate probation "if the interests of justice so require" and the court, in its judgment, has reason to believe that the probationer has violated any of the conditions of his or her probation, has committed a criminal offense since being placed on probation, or "has become abandoned to improper associates or a vicious life . . . ." (§ 1203.2, subd. (a).) The prosecution must prove the facts supporting revocation of probation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439; Evid. Code, § 520 [party claiming a person is guilty of crime or wrongdoing has the burden of proof on that issue].) Revocation of probation rests within the sound discretion of the trial court. (People v. Smith (1970) 12 Cal.App.3d 621, 626.) While this discretion is broad, the court may not act arbitrarily or capriciously and must base its determination on the facts before it. A court may abuse its discretion in revoking probation if a probationer is in technical violation only and has a valid excuse. (Ibid.) Similarly, a court may abuse its discretion in revoking probation if a defendant did not willfully violate probation. (People v. Zaring (1992) 8 Cal.App.4th 362, 375.)

B. Section 290

Section 290 imposes upon a convicted sex offender a duty to register with local law enforcement and update authorities on a change of residence. Subdivision (a)(1)(A) provides, "Every person described in paragraph (2) [i.e., those required to register; see also subd. (d)(1) (registration of juvenile court wards)] . . . 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, or campus in which he or she temporarily resides." (See People v. Balkin (2006) 145 Cal.App.4th 487.) A registered person who changes his residence must, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, and of the new address or transient location, if known. (Subd. (f)(1)(A); People v. Britt (2004) 32 Cal.4th 944, 951.) A person must also update his registration annually within five days of his birthday. (§ 290, subd. (a)(1)(D).) A person subject to section 290 who willfully violates these requirements is guilty of a felony. (Subd. (g)(2).)

Subdivision (e) addresses registration requirements for persons incarcerated or placed on probation. Section 290, subdivision (e)(1), provides that "upon incarceration, placement, or commitment, or prior to release on probation, any person who is required to register under this section shall preregister. The preregistering official shall be the admitting officer at the place of incarceration, placement, or commitment, or the probation officer if the person is to be released on probation." A person is required to preregister only once (§ 290, subd. (e)(1)(C)).

Section 290, subdivision (e)(2), provides that "[a] person [subject to registration] shall register, or reregister if the person has previously registered, upon release from incarceration, placement, commitment, or release on probation pursuant to paragraph (1) of subdivision (a). This paragraph shall not apply to a person who is incarcerated for less than 30 days if he or she has registered as required by paragraph (1) of subdivision (a), he or she returns after incarceration to the last registered address, and the annual update of registration that is required to occur within five working days of his or her birthday, pursuant to subparagraph (D) of paragraph (1) of subdivision (a), did not fall within that incarceration period." (Italics added.)² As noted above, paragraph 1 of subdivision (a) provides that those required to register must do so with the chief of police in the city of residence within five working days of coming into, or changing residence within, the city.

C. Section 290 Not Unconstitutionally Vague

Simon contends section 290 is unconstitutional as applied to him. Specifically, he argues subdivision (e)(2)'s registration requirement fails to provide adequate notice and therefore is void for vagueness: "Out of the 6,210 words that make up section 290, only subdivision (e)(2) appears to apply to appellant's situation, and it does not require registration within five days. It does refer back to subdivision (a)(1), but that section only requires registration within five days of a change of address. The trial court found it confusing and was not at all certain that the five[-]day requirement applied, but ultimately accepted the prosecutor's argument, finding `that interpretation' to be `more logical and reasonable than any I have heard so far.' [¶] Equally logical and reasonable, however, would be the interpretation that reregistration would be necessary for an individual released from custody if subdivision (a)(1) required him to do so; i.e., he had changed his address. A reasonable person in appellant's...