Wright v. Superior Court

• Decision Date: 12 May 1997
• Docket Number: No. S053938,S053938
• Citation: 936 P.2d 101,15 Cal.4th 521,63 Cal.Rptr.2d 322
• Court: California Supreme Court
• Parties: , 936 P.2d 101, 97 Cal. Daily Op. Serv. 3543, 97 Daily Journal D.A.R. 6033 James William WRIGHT, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party in Interest.

Page 322

63 Cal.Rptr.2d 322

15 Cal.4th 521, 936 P.2d 101, 97 Cal. Daily Op. Serv. 3543,

97 Daily Journal D.A.R. 6033

James William WRIGHT, Petitioner, v.The SUPERIOR COURT of Orange County, RespondentThe PEOPLE, Real Party in Interest.

No. S053938.

Supreme Court of California.

May 12, 1997.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Assistant Public Defender, Denise M. Gragg, Thomas Havlena and Alan J. Crivaro, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Michael R. Capizzi, District Attorney, Maurice L. Evans, Chief Assistant District Attorney, and Donald L. Clarence, Deputy District Attorney, for Real Party in Interest.

BROWN, Justice.

When a registered sex offender changes his or her residence address, the offender must notify the law enforcement agency of last registration within a specified period.(Pen.Code, § 290, subd. (f); further undesignated statutory references are to the Penal Code.)Prior to January 1, 1995, failure to provide such notification was a misdemeanor; thereafter, the Legislature declared it a felony.(Stats.1994, ch. 867, § 2.7.)The question before us is whether felony prosecution is prohibited as ex post facto if the defendant's address change and failure to notify occurred when the violation was classified as a misdemeanor.The answer turns on whether the Legislature intended section 290, subdivision (f), to describe a

continuing affirmative duty.Considering the overall statutory scheme and purpose of section 290, we find the failure to comply with interim registration requirements is a continuing offense and therefore conclude felony prosecution is not ex post facto.

FACTUAL AND PROCEDURAL BACKGROUND

By an amended two-count information filed September 11, 1995, the People charged petitionerJames William Wright(defendant) with felony violation of section 290, subdivisions (a) and (f).The information alleged the offenses occurred between February 1 and March 23, 1995, based on the following facts adduced at the preliminary hearing:

On March 23, 1995, Anthony Valente, a special agent with the California Department of Justice, went to defendant's last known address on Los Angeles Way in Buena Park.At that location, Valente encountered Henry Longbreak, who said defendant had moved out some time in November 1994.Although Longbreak claimed he did not know defendant's whereabouts, he suggested Valente check an apartment on South Knott Avenue in Anaheim.Valente located defendant at that address and placed him under arrest for violation of parole; an open suitcase containing his belongings was found on the living room floor.According to Steve Cedarquist, who lived in the apartment with his girlfriend, defendant was not a resident but only took an occasional shower there.

Marjorie Martin, a records supervisor with the Buena Park Police Department, testified defendant had registered with the department as a sex offender on August 15, 1994.He never informed the department he had left the Los Angeles Way address.

Defendant moved to dismiss the information pursuant to section 995, contending felony prosecution violated the ex post facto proscription because the charges were misdemeanors when he failed to report his change of address in November 1994.On motion of the People, the trial court dismissed count 1 (§ 290, subd. (a)) for insufficient evidence.As to count 2 (§ 290, subd. (f)), the court concluded it was a continuing offense and thus properly prosecuted as a felony.

On defendant's petition, the Court of Appeal issued a writ of mandate directing the trial court to dismiss the information in its entirety.Over a dissenting view, the court determined violation of section 290, subdivision (f), is an instantaneous offense completed as soon as the notification grace period expires.In defendant's case, that occurred sometime in December 1994; therefore, he could only be prosecuted for a misdemeanor violation.We granted the People's petition for review and now reverse.

DISCUSSION

Does section 290, subdivision (f)(section 290(f)), describe an instantaneous or a continuing offense?Most crimes are instantaneous since they are committed as soon as every element is satisfied.Some crimes, however, are not terminated by a single act or circumstance but are committed as long as the proscribed conduct continues.Each day brings "a renewal of the original crime or the repeated commission of new offenses."(Toussie v. United States(1970)397 U.S. 112, 119, 90 S.Ct. 858, 862, 25 L.Ed.2d 156(Toussie ).)The distinction is critical because it determines the application of many legal principles such as the statute of limitations period, venue, jurisdiction, sentencing, double jeopardy, and, as here, the prohibition against ex post facto laws.

The concept of a continuing offense is well established.¹ For present purposes, it may be formulated in the following terms: "Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do.The offense continues as long as the duty persists, and there is a failure to perform that duty."(Duncan v. State(1978)282 Md. 385, 390, 384 A.2d 456, 459;John v. State, supra, 96 Wis.2d at p. 188, 291 N.W.2d at p. 505.)Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met.It is nevertheless not completed as long as the obligation remains unfulfilled."The crime achieves no finality until such time."(United States v. Cores(1958)356 U.S. 405, 409, 78 S.Ct. 875, 878, 2 L.Ed.2d 873;seeState v. Morse(1969)54 N.J. 32, 35, 252 A.2d 723, 725["Although a violation ... comes into being at the expiration of the [grace] period, there is nonetheless a continuing requirement that a person within the reach of the statute shall meet its terms."];see alsoWilliams v. Superior Court, supra, 81 Cal.App.3d at pp. 343-344, 146 Cal.Rptr. 311.)

Determining if a particular violation of law constitutes a continuing offense is primarily a question of statutory interpretation.(Toussie, supra, 397 U.S. at p. 115, 90 S.Ct. at p. 860;see, e.g., People v. Keehley, supra, 193 Cal.App.3d at p. 1385, 239 Cal.Rptr. 5;seeWilliams v. Superior Court, supra, 81 Cal.App.3d at p. 344, 146 Cal.Rptr. 311.)The answer, however, does not depend solely on the express language of the statute.Equally important is whether "the nature of the crime involved is such that [the Legislature] must assuredly have intended that it be treated as a continuing one."(Toussie, supra, at p. 115, 90 S.Ct. at p. 860;seeUnited States v. Cores, supra, 356 U.S. at pp. 409-410, 78 S.Ct. at pp. 878-879.)Accordingly, we must consider both the text of section 290(f) and its statutory context.

In November 1994, section 290(f) provided: "If any person required to register pursuant to this section changes his or her residence address, the person shall inform, in writing within 10 days, the law enforcement agency or agencies with whom he or she last registered of the new address.The law enforcement agency or agencies shall, within three days after receipt of this information, forward it to the Department of Justice.The Department of Justice shall forward appropriate registration data to the law enforcement agency or agencies having local jurisdiction of the new place of residence."² The provision is part of a comprehensive scheme enacted in 1947 requiring certain convicted sex offenders to register with appropriate law enforcement agencies; it assumed substantially its present form in 1950.(Stats.1950, FirstEx.Sess.1949, ch. 13, § 1, p. 27.)

By its terms, section 290(f) does not expressly state a continuing offense.The obligation is, however, described as an affirmative, mandatory duty.Moreover, nothing in the statute indicates the mere passage of time will extinguish the notification requirement.(SeeIn re Parks, supra, 184 Cal.App.3d at p. 480, 229 Cal.Rptr. 202.)Nevertheless, the language is too uncertain to support a finding solely on that basis.(Toussie, supra, 397 U.S. at p. 115, 90 S.Ct. at p. 860.)We must therefore consult the broader statutory scheme to determine the Legislature's perception of the "nature" of section 290(f).(Toussie, supra, at p. 115, 90 S.Ct. at p. 860.)

Section 290"applies automatically to the enumerated offenses, and imposes on each person convicted a lifelong obligation to register."(In re Reed(1983)33 Cal.3d 914, 919, 191 Cal.Rptr. 658, 663 P.2d 216;Barrows v. Municipal Court(1970)1 Cal.3d 821, 825, 83 Cal.Rptr. 819, 464 P.2d 483.)Registration is mandatory (People v. Monroe(1985)168 Cal.App.3d 1205, 1209, 215 Cal.Rptr. 51), and is "not a permissible subject of plea agreement negotiation"(People v. McClellan(1993)6 Cal.4th 367, 380, 24 Cal.Rptr.2d 739, 862 P.2d 739).It is intended to promote the " 'stateinterest in controlling crime and preventing recidivism in sex offenders.' "(People v. Monroe, supra, at p. 1215, 215 Cal.Rptr. 51.)As this court has consistently reiterated: "The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.[Citation.]"(Barrows v. Municipal Court, supra, at pp. 825-826, 83 Cal.Rptr. 819, 464 P.2d 483;id., at p. 827, 83 Cal.Rptr. 819, 464 P.2d 483;People v. McClellan, supra, at p. 376, fn. 7, 24 Cal.Rptr.2d 739, 862[936 P.2d 105] P.2d 739;In re Reed, supra, at p. 919, 191 Cal.Rptr. 658, 663 P.2d 216;In re Smith(1972)7 Cal.3d 362, 367, 102 Cal.Rptr. 335, 497 P.2d 807.)Plainly, the Legislature perceives that sex offenders pose a "continuing threat to society"(United States v. Bailey(1980)444 U.S. 394, 413, 100 S.Ct. 624, 636, 62 L.Ed.2d 575) and require constant vigilance.(SeeIn re Parks, supra, 184 Cal.App.3d at pp. 480-481, 229 Cal.Rptr....