People v. Sorden

• Decision Date: 23 June 2005
• Docket Number: No. S120677.,S120677.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Kenneth SORDEN, Defendant and Appellant.

29 Cal.Rptr.3d 777

36 Cal.4th 65

113 P.3d 565

The PEOPLE, Plaintiff and Respondent, v. Joseph Kenneth SORDEN, Defendant and Appellant.

No. S120677.

Supreme Court of California.

June 23, 2005.

Rehearing Denied July 27, 2005.¹

Kathleen Kahn and Richard Such, San Francisco, under appointments by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit and Jill M. Thayer, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

A registered sex offender must, within five working days of the offender's birthday, update his or her registration. (Pen.Code, § 290, subd. (a)(1)(D).)² Willful failure to update one's registration is a felony. (§ 290, subd. (g)(2).) In People v. Barker (2004) 34 Cal.4th 345, 18 Cal. Rptr.3d 260, 96 P.3d 507 (Barker), we held the willfulness element of the offense may not be negated by evidence the defendant "just forgot" to register. (Id. at p. 358, 18 Cal.Rptr.3d 260, 96 P.3d 507.) We reserved judgment "as to whether forgetfulness resulting from, for example, an acute psychological condition, or a chronic deficit of memory or intelligence might negate the willfulness required for a section 290 violation." (Id. at p. 358, 18 Cal.Rptr.3d 260, 96 P.3d 507.) This case presents the question whether forgetting to update one's registration because of severe depression may negate the section 290 willfulness requirement.

The Attorney General contends willful failure to update one's registration as a sex offender is a general intent crime, and, therefore, evidence that defendant forgot to update his registration due to depression was inadmissible under section 28, subdivision (a).³ Defendant responds that the due process right to present a defense trumps section 28 in the circumstances of this case.

We need not address section 28 or its constitutionality to resolve this case. All we need do is construe section 290. We have been mindful of due process considerations in interpreting section 290. In People v. Garcia (2001) 25 Cal.4th 744, 107 Cal.Rptr.2d 355, 23 P.3d 590 (Garcia), we held that the willfulness element of a section 290 violation requires actual knowledge of the duty to register. We now hold that the willfulness element of the offense may be negated by evidence that an involuntary condition — physical or mental, temporary or permanent — deprived a defendant of actual knowledge of his or her duty to register. Only the most disabling of conditions, we emphasize, would qualify under the standard we announce today. Severe Alzheimer's disease is one example that comes to mind; general amnesia induced by severe trauma is another. Defendant's claimed depression clearly did not satisfy this standard. Defendant knew of his obligation to register and, had he taken it to heart, he could have managed to discharge it.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant is a registered sex offender, and so must update his registration within five working days of his birthday. (§ 290, subd. (a)(1)(D).) Defendant's birthday is December 6; in 2001, he did not update his registration until December 22. He voluntarily came to the Pacifica police station to do so. According to the officer who interviewed him, defendant said "he had simply forgotten to." Defendant added he had "gotten up that morning, realized he hadn't registered and that he needed to do so."

While defendant claims to have forgotten to register on this occasion, there is no question but that he was ordinarily well aware of his obligation. He had complied with it on numerous occasions in the past. He was, he testified, "stunned" he had forgotten to update his registration this time. "It was something I don't usually forget at all. I'm constantly reminded of it every day." Indeed, defendant asserted he would "never forget" the day he was first required to register as a sex offender.

The indelibility of that day for defendant is apparently attributable to the fact that this lifetime obligation has never ceased to chafe him. In 1988, in signing an acknowledgment that he had been notified of the sex offender registration requirements, he wrote he was doing so "under duress." In 1999, in initialing the registration form's 16 statements advising him of his various obligations, including his obligation to update his registration "within 5 working days of my birthday," defendant complained: "Registering is having a negative effect on me. It's not fair to be classified as such a sex freak for an isolated incident [his conviction for rape in 1983]." Defendant renewed this complaint in signing the registration form some months before this incident.

At trial, defendant testified he forgot to update his registration because he was "in a pretty depressed state due to many issues." His counsel asked him, "What were those issues?" However, the prosecutor's objection on grounds of relevancy was sustained. Earlier, the court had foreclosed this line of inquiry by granting the prosecutor's motion in limine; the ground of the ruling was that failure to update one's sex offender registration is a general intent crime.

According to defendant's proffers of evidence, friends of his were prepared to testify he was depressed because (1) his mother had cancer; (2) the mother of his son, in order to terminate his visitation rights, had falsely accused him of being abusive to the boy; (3) he had broken up with his girlfriend; and (4) his dog had died. In his argument opposing the motion in limine, defense counsel said the testimony of defendant's friends, as to "what he was going through at the time," would lay the foundation for an expert witness who would testify (1) that defendant was "showing signs of clinical depression," and (2) how depression affects "concentration and memory."

Finding defendant guilty of willfully failing to update his registration (§ 290, subd. (g)(2)), the court suspended imposition of sentence and granted defendant probation for three years, subject to, among others, the condition that he pay a restitution fine of $200 (§ 1202.4), and that he serve 90 days in the county jail with credit for time served. The Court of Appeal reversed. "We agree with [defendant] that genuinely forgetting to register negates the element of willfulness required in section 290, and therefore, the trial court erred in refusing to admit testimony that [defendant] failed to remember to register."

We reverse the judgment of the Court of Appeal, and we remand the cause for further proceedings consistent with the views expressed herein.

DISCUSSION

Again, in Garcia, supra, 25 Cal.4th 744, 107 Cal.Rptr.2d 355, 23 P.3d 590, we held that a violation of section 290 requires actual knowledge of the duty to register. "In a case like this, involving a failure to act, we believe section 290 requires the defendant to actually know of the duty to act. Both today and under the version applicable to defendant, a sex offender is guilty of a felony only if he `willfully violates' the registration or notification provisions of section 290. (§ 290, former subd. (g)(3), as amended by Stats.1994, ch. 867, § 2.7, p. 4393; § 290, present subd. (g)(3).) The word `willfully' implies a `purpose or willingness' to make the omission. (§ 7.) Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. As stated in People v. Honig (1996) 48 Cal.App.4th 289, 334, 55 Cal.Rptr.2d 555, `the term "willfully" ... imports a requirement that "the person knows what he is doing." [Citation.] Consistent with that requirement, and in appropriate cases, knowledge has been held to be a concomitant of willfulness. [Fn. omitted.]' Accordingly, a violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (Garcia, at p. 752, 107 Cal.Rptr.2d 355, 23 P.3d 590.)

We further held in Garcia that as construed to require actual knowledge of one's duty to register, section 290 satisfies due process. "The actual knowledge test satisfies constitutional requirements. The high court has held that due process principles forbid applying the proscriptions of a registration act to one having `no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.' (Lambert v. California (1957) 355 U.S. 225, 227, 78 S.Ct. 240, 2 L.Ed.2d 228 (Lambert).) ... [¶] Assuming Lambert controls here (but see U.S. v. Kafka (9th Cir.2000) 222 F.3d 1129, 1132-1133 [Lambert does not apply where the circumstances, including any notice expressly or impliedly provided by the criminal statute, should have alerted defendant to the registration requirement]; U.S. v. Meade (1st Cir.1999) 175 F.3d 215, 226 [same]), it merely established that a defendant cannot be convicted of violating a registration act without at least `proof of the probability of' knowledge of the duty to register. (Lambert, supra, 355 U.S. at p. 229, 78 S.Ct. 240.) By making actual knowledge of the duty to register an element of a section 290 violation, we undoubtedly meet any due process limitations imposed by Lambert." (Garcia, supra, 25 Cal.4th at pp. 752-753, 107 Cal.Rptr.2d 355, 23 P.3d 590.)

In People v. Atkins (2001) 25 Cal.4th 76, 104 Cal.Rptr.2d 738, 18 P.3d 660, we rejected the argument that exclusion of evidence, under section 22,⁴ of the defendant's voluntary intoxication "violate[d] his due process rights by denying him the opportunity to prove he did not possess the required mental state (Montana v. Egelhoff (1996) 518 U.S. 37, 39-40, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361.)" (Atkins, at p. 93, 104 Cal.Rptr.2d 738,18 P.3d 660.)

We recognize, of course, that depression, unlike drunkenness, is not a voluntary condition. And we realize a person may suffer from an involuntary condition so...