The People v. Armas
| Decision Date | 18 January 2011 |
| Docket Number | B214134,No. BA332111,No. BA346140,BA346140,BA332111 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSE MARDOQUEO ARMAS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara R. Johnson, Judge. Affirmed in part, reversed in part, and remanded.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jose Armas was convicted, following a plea of nolo contendere, of one count of lewd conduct with a person under 14.1 Pursuant to a plea agreement, defendant was sentenced to probation, subject to several conditions, including sex offender registration.2 Defendant was released from jail immediately following sentencing. Less than two months later, defendant was arrested for violating the Sex Offender Registration Act (the Act). His probation was revoked and the matter set for a probation violation hearing. Defendant was also charged by information with three violations of the Act; his probation violation hearing trailed the proceedings in the new case. A jury found defendant guilty of all three counts; the trial court subsequently concluded defendant had violated probation and declined to reinstate probation. Defendant appeals from his conviction for violating the Act and from the probation violation. Defendant contends insufficient evidence supports the conclusion that he violated the Act (and that the jury was misinstructed). We agree with defendant's contentions with respect to two counts of violating the Act, but the third count is well-supported. We thus reverse defendant's conviction of two counts and remand for resentencing. We affirm the probation violation.
Before we discuss the factual and procedural background of this case, a brief discussion of the relevant sex offender registration requirements is useful. A person subject to the Act must register for the rest of his or her life while residing in California. (Pen. Code, § 290, subd. (b).) The sex offender must register with the chief of police of the city in which he or she is residing, or with the sheriff of the county if he or she is residing in an unincorporated area or a city that has no police department. (Ibid.) Registration must be made within five working days of "coming into, or changing his or her residence within" any city, county, or city and county. (Ibid.) After an offender has initially registered with an agency, the offender must annually update his or her registration within five working days of his or her birthday. (Pen. Code, § 290.012, subd. (a).)
As the agency with which an offender must register is determined by the location of an offender's residence, the meaning of "residence," as used in the Act, is significant. The Act defines the term to mean "one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." (Pen. Code, § 290.011, subd. (g).) If an offender has no residence, that person is considered to be "transient," within the meaning of the Act. (Ibid.) A transient subject to the Act is to make his or her initial registration within five daysfrom the release from incarceration or on probation. (Pen. Code, § 290.011, subd. (a).) If the transient is not present in any one jurisdiction for five consecutive working days, he or she shall register in the jurisdiction in which he or she is physically present on the fifth working day following release. (Ibid.) While offenders with residences must re-register annually, transients are required to re-register every thirty days. (Ibid.) Parallel to the provisions governing the registration of offenders with residences, transient offenders are to re-register with the chief of police of a city, if physically present in the city during that 30-day period; or with the sheriff of the county, if present in an unincorporated area or a city that has no police department. (Ibid.)
If an offender with a residence changes his or her residence in California, the offender must make a new registration (whether or not the new residence is in a new jurisdiction) within five working days of making the change. (Pen. Code, § 290, subd. (b).) Similarly, if a transient offender moves to a residence, the offender has five working days within which to register at the new address. (Pen. Code, § 290.011, subd. (b).) Moreover, an offender who was last registered at a residence address who leaves that residence must inform the law enforcement agency with which he or she was last registered of the move. (Pen. Code, § 290.013, subd. (a).) This provision also applies if the offender who previously registered at a residence has now become transient. (Ibid.)
In sum, an offender subject to the Act must make his or her first registration, whether as a person with a residence or a transient, within five working days. If an offender subject to the Act obtains a new residence (either from an old residence or thestate of being transient), the offender must register at the new residence within five working days. If an offender subject to the Act was registered at a residence and moves from that location, the offender must notify the previous registering agency within five working days. Transients, who have no residence, must update their registration every 30 days, unless they obtain a residence, in which case they must register within five days of doing so.3
Within this framework, we now turn to the factual and procedural background of the instant case.
Defendant was released from jail, in the lewd conduct case, on July 24, 2008. On July 25, 2008, he began living at the Whittier Atlantic Hotel, located at 5379 Whittier Blvd., in East Los Angeles. The Whittier Atlantic Hotel has a contract, with the County Department of Social Services, to provide temporary lodging for people who do not have any other place to live. The County gives eligible individuals vouchers, which the hotel owner then submits in order to obtain payment.
On July 28, 2008, defendant went to the East Los Angeles Sheriffs station, in order to register as a sex offender. Sex offender registration is handled at the station by Detective David Magdaleno. He performs registrations on Wednesdays, but will also register offenders by appointment on other days. Detective Magdaleno was unable to register defendant on July 28, 2008, which was a Monday, and made an appointment for defendant to return on August 4, 2008. Detective Magdaleno gave defendant a small piece of paper, which defendant could then show his probation officer, indicating that defendant had tried to timely register and was unable to do so because Detective Magdaleno could not perform the registration at that time.
On July 30, 2008, defendant went to the East Los Angeles area probation office. He showed the office the paper from Detective Magdaleno, and was given instructions on sex offender registration and being on probation. The intake officer then assigned defendant's case to Deputy Probation Officer Octavio Soto, although Deputy P.O. Soto did not meet with defendant at that time.
On August 4, 2008, defendant met with Detective Magdaleno to make his initial registration. Defendant did not tell Detective Magdaleno that he was a transient. Instead, defendant gave Detective Magdaleno his address at the Whittier Atlantic Hotel. Detective Magdaleno completed the initial registration form for defendant as an annual registrant; defendant signed it. Detective Magdaleno explained, in detail, defendant'sfurther registration obligations.4 Detective Magdaleno gave defendant a card as proof of his completed registration.
Defendant had obtained only two weeks' worth of vouchers from the Department of Social Services. Thus, the County paid for his stay at the Whittier Atlantic Hotel only through August 7, 2008. The record does not indicate where defendant stayed that night, or for the next 19 days.5
On August 12, 2008, Deputy P.O. Soto sent a letter to defendant, at the Whittier Atlantic Hotel, directing defendant to report to his office. On August 18, 2008, the letter was returned as undeliverable. Deputy P.O. Soto had a cellular telephone number for defendant, and called the number. Defendant answered and Deputy P.O. Soto asked defendant about his whereabouts. Defendant told Deputy P.O. Soto that he was transient, and no longer staying at the hotel. Deputy P.O. Soto told defendant that he should report to the East Los Angeles Sheriff's Department to register as a transient. Defendant told Deputy P.O. Soto that he had 30 days to register his change of address; Deputy P.O. Soto corrected him and told him that he had only five days within which to make the new registration. Defendant told Deputy P.O. Soto that he would go in and register. Deputy P.O. Soto also made an appointment for defendant to come to the probation office on August 26, 2008.
Although defendant had told Deputy P.O. Soto that he would return to the East Los Angeles Sheriff's Department to register as a transient, he did not do so. Nor did he attempt to make an appointment with Detective Magdaleno to come in and update his registration.
On August 26, 2008, defendant met with Deputy P.O. Soto.6 At this point, defendant told Deputy P.O. Soto that he was staying in a shelter in downtown Los Angeles. In recognition of the fact that defendant was now staying in the ...
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