People v. Smith

Decision Date29 March 2004
Docket NumberNo. S108291,S108291
Citation32 Cal.4th 792,11 Cal.Rptr.3d 290,86 P.3d 348
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. David Woodrow SMITH, Defendant and Appellant.

Tracy J. Dresner, under appointment by the Supreme Court, and Mark Ankcorn, under appointment by the Court of Appeal, Santa Ana, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Donald E. De Nicola, Marc J. Nolan, Daniel Rogers and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant, a convicted sex offender, is required to register with the police and tell them where he is living. (Pen.Code, § 290.)1 He was charged with failure to register in violation of section 290, subdivision (g), because he failed to inform the police of a change of address within five working days, as required by section 290, subdivision (f)(1). Defendant claimed he mailed the required notice, but the police did not receive it. After the trial court told the jury that a registered sex offender must see to it that the written notification of a change of address is actually received by the police, defendant was found guilty and sentenced to five years in prison.

We conclude that the trial court erred in instructing the jury that a registrant who mails a change-of-address notice within the statutory five-day period nevertheless violates section 290 if the police do not actually receive the notice. Under the circumstances here the error was prejudicial. We therefore reverse the judgment of the Court of Appeal affirming defendant's conviction.


Defendant lived in Long Beach, California. He published an advertising newspaper, the Bixby Beat, with a circulation of about 10,000. On April 7, 1999, he told his readers in an editorial that he was selling the paper and moving east where his family lived.

Defendant testified that he moved from Long Beach to Boulder, Colorado, on April 10, 1999. He said that on April 12 he mailed a change-of-address card to Long Beach Detective James Newland. Defendant also mailed a change-of-address notice to the Long Beach Post Office. After a nine-day stay in Colorado, defendant moved to Port Jervis, New York, where his daughter lived. After arriving in New York he notified the California Department of Motor Vehicles and the California Franchise Tax Board of his new residence.

Detective Newland testified that he did not receive any notice from defendant and did not know that defendant had left California. On September 25, 1999, defendant was due for his annual registration as a sex offender. When defendant did not appear, Detective Newland tried to contact defendant but found defendant's Long Beach apartment vacant. Following up on various leads, Newland contacted Lieutenant Maryann Schultes of the police department in Port Jervis, New York. Officers from that police department took defendant into custody.

Lieutenant Schultes testified that during booking defendant told her he had left Long Beach on April 10, 1999, but had not notified authorities because he wanted "to start a new life." Defendant, however, claimed that he told Lieutenant Schultes that he mailed a change-of-address notice to the Long Beach Police. Defendant denied telling Schultes that he had not notified authorities because he wanted to start a new life. The trial court instructed the jury: "In order to prove a violation of Penal Code section 290 and 290(f)(2) ... the following elements must be proved: ... [¶] That the person willfully and unlawfully failed to inform in writing the police agency with whom he was last registered of his change of address ... within five working days of moving into any city or county or state." The court did not define the term "inform."

During its deliberations, the jury told the court that after six votes it was deadlocked with a seven-to-five split. According to the foreman, "we were pretty dead set on our answers." The court invited questions, and it conferred with counsel as to how to respond to the questions.

When the jury returned to the courtroom, Juror No. 7 said that one juror was interpreting the court's instructions to mean that it did not matter whether defendant sent a change-of-address notice to the Long Beach Police because "the fact it didn't get there meant there was no notification." Juror No. 7 inquired if it "was correct for that juror to interpret it that way." The court responded: "It is the obligation of the person who has to register to see that written notification is received by the police department." (Italics added.) Juror No. 11 asked: "If it is his obligation, then why does `willful' have anything to do with it?" The court replied: "Because it goes to knowledge of obligation. Let me give you an example. I don't think it would be fair for a person who has to register to walk down the street and see a police officer on patrol and throw a post card into that police officer's car and say, `Here, that's all I have to do.' Would it? ... So I don't think that's good enough. That's just an off the top of my head example, but the law is, I believe, that it is the obligation of the person who has to register ... to see to it that there is receipt of the written notification of a change of address or a move out of the state." Juror No. 11 then asked: "[W]hy doesn't that just make him guilty then if they don't have it because he didn't check it out to make sure that they had received it? Why is there even a question here?" The court responded, "I think that's for you to decide."

After the jury retired, defense counsel put on the record his objection to the instruction that the defendant must prove receipt of the notice by the police agency. The trial court acknowledged that defense counsel "may be absolutely right," and it invited counsel to renew his objection if there was a conviction. The jury returned a guilty verdict 20 minutes later. Defendant then renewed his objection in a motion for new trial. The trial court denied the motion and sentenced defendant to five years in prison.


Section 290, subdivision (f)(1) states: "If any person who is required to register pursuant to this section changes his or her residence address or location, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, the person shall inform, in writing within five working days, the law enforcement agency or agencies with which he or she last registered of the new address or location." (Italics added.) Virtually identical language appears in three other statutes.2 The issue here is whether the trial court erred in instructing the jury that this language imposes a duty on a registrant "to see to it that there is receipt of a written notification of a change of address." No previous case has addressed that issue, either as to section 290, subdivision (f)(1), or as to any of the other statutes using parallel wording.

The Attorney General contends that the phrase "shall inform" means that a registrant has a duty to ensure that the police actually receive the change-of-address form. Defendant, however, insists that a timely mailing is sufficient compliance.

In construing a statute, "`we strive to ascertain and effectuate the Legislature's intent.' [Citations.] Because statutory language `generally provide[s] the most reliable indicator' of that intent [citations], we turn to the words themselves, giving them their `usual and ordinary meanings' and construing them in context...." (People v. Castenada (2000) 23 Cal.4th 743, 746-747, 97 Cal.Rptr.2d 906, 3 P.3d 278.) "If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs." (People v. Robles (2000) 23 Cal.4th 1106, 1111, 99 Cal.Rptr.2d 120, 5 P.3d 176.) If, however, the statutory language is susceptible of more than one reasonable construction, we can look to legislative history (ibid.) and to rules or maxims of construction (Mejia v. Reed (2003) 31 Cal.4th 657, 663, 3 Cal.Rptr.3d 390, 74 P.3d 166). "Finally, the court may consider the impact of an interpretation on public policy, for `[w]here uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.'" (Ibid., quoting Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

Because both parties have advanced reasonable interpretations of section 290, subdivision (f)(1), and no legislative history illumines the matter, our decision in People v. Franklin (1999) 20 Cal.4th 249, 84 Cal.Rptr.2d 241, 975 P.2d 30 (Franklin) is apposite. There we construed an earlier version of section 290 that required a sex offender "`while residing in California, ... to register ... within 14 days of coming into any county [or] city ... in which he ... temporarily resides or is domiciled for that length of time.'" (Franklin, at p. 251, 84 Cal.Rptr.2d 241, 975 P.2d 30, quoting former § 290, subd. (a)(1), italics added.) The issue was whether a defendant who moved from California to Texas had to notify California authorities of his change of residence. The Court of Appeal held that the statutory phrase "while residing in California" applied to a person moving from California to another state.

We reversed the Court of Appeal's judgment, explaining: "We disagree with the Court of Appeal's overly technical analysis. Initially, we note that failure to comply with California's sex offender registration law constitutes a penal offense.... That being so, the statute must be construed as favorably to the defendant as its language and the circumstances of its application reasonably may permit. [Citations.] [¶] This principle of favorable construction is especially apposite to registration...

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