Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF04-7743
BUTZ, J.In August 2005, a jury found defendant Victor Castaneda Argumedo guilty of (1) failing to register as a sex offender “while residing at 661 Fourth Street on or about and between April 1, 2004 and December 13, 2004” (former Pen. Code, § 290, subd. (g)(2)--count 2); (2) failing to register as a sex offender within five working days of obtaining a new residence address or location; or, if he had no residence, failing to register his location every 60 days “on or about and between August 18, 2004 and December 13, 2004” (former § 290, subd. (g)(2)--count 4); and (3) five misdemeanor counts of violating a court order (§ 273.6, subd. (a)--counts 5-9). The jury found him not guilty of making criminal threats (§ 422--count 1) and failing to register as a sex offender within five working days of his birthday (former § 290, subd. (g)(2)--count 3). The trial court sentenced defendant to an aggregate term of three years in state prison, including the upper term of three years on count 2.
Undesignated statutory references are to the Penal Code. References to former section 290 are to the version in effect at the time of the charged offenses (Stats. 2003, ch. 634, § 1.3, eff. Sept. 30, 2003 [hereafter former § 290]). The Legislature has devoted significant attention to section 290 since its enactment in 1947. Amendments to the statute have occurred at least annually since 1992. The reader is warned that this opinion, by necessity, refers to numerous versions of section 290.
Defendant’s upper term sentence on count 4 was stayed pursuant to section 654, and he was sentenced to 240 days in county jail on the misdemeanor counts, with credit for time served.
On appeal, defendant contends (1) his conviction on count 4 must be reversed because (a) the People’s “second theory of guilt is not legally applicable,” and “it is unknown upon which theory the jury rested its verdict,” (b) “the definition of ‘residence’ given by the trial court is wrong and misled the jury,” and (c) section 290 is unconstitutionally vague as applied to him; (2) his convictions on all counts must be reversed because the trial court prejudicially erred in ordering him to wear leg restraints during the trial; and (3) imposition of the upper term on count 2 violates his Sixth Amendment right to a jury trial. Disagreeing with each of his contentions, we shall affirm the judgment.
We shall limit our recitation of the facts here to those underlying defendant’s conviction on count 4. Additional facts are set forth below in the discussion of defendant’s individual claims.
A. The Prosecution
Defendant is required to register as a sex offender for the rest of his life because of a 1995 felony conviction for sexual battery. (Former § 290, subd. (a)(2).)
From January to December 2004, defendant worked for his cousin, who owned a garage door installation business located at 1240 Alice Street, Suite B, in Woodland. By “early August” 2004, defendant was living at 661 Fourth Street in Woodland.
On August 16, 2004, defendant was served with a “restraining/move-out order,” which required that he leave the Fourth Street address and not return.
On August 18, 2004, defendant registered his residence address as “1240 Alice Street, No. B,” the location of his cousin’s garage door installation business. He did not reregister or update his registration at any point after August 18 and before December 14, 2004.
B. The Defense
Defendant testified in his own defense at trial. He moved to the Fourth Street address in early August, lived there for a couple of weeks, but never registered that address. He registered the Alice Street address as his residence because he “was removed from [his] household” and his cousin agreed he “could use the shop as an address and a place to store all [his] belongings.” Although he was not living at that address, everything he owned was there and he spent most of his time there. He slept there only “once or twice.”
Between August and December 2004, defendant lived at “various motels” and stayed at his daughter’s house “maybe a night or two.” He did not register any of the motel addresses because “they weren’t permanent.” He did not register as a “transient” because he did not consider himself a transient, which he defined as “a person who lives out on the streets.”
DISCUSSION
I. Failure to Register Conviction
In count 4, the People elected to proceed under two alternative theories: (1) defendant failed to register as a sex offender “within five working days of obtaining a new residence address or location” (former § 290, subd. (a)(1)(A)), or (2) if he had no residence, he failed to register his location every 60 days “on or about and between August 18, 2004 and December 13, 2004” (former § 290, subd. (a)(1)(C)).
At the time of the charged offenses in 2004, defendant was required “to register with the chief of police of the city in which he . . . [was] residing, or if he . . . ha[d] no residence, [was] located, . . . within five working days of coming into, or changing his . . . residence or location . . . .” (Former § 290, subd. (a)(1)(A).) If he had “more than one residence address or location at which he . . . regularly reside[d] or [was] located, he . . . [was required to] register in accordance with subparagraph (A) in each of the jurisdictions in which he . . . regularly reside[d] or [was] located. If all of the addresses or locations [were] within the same jurisdiction, [he was required to] provide the registering authority with all of the addresses or locations where he . . . regularly reside[d] or [was] located.” (Former § 290, subd. (a)(1)(B).) Finally, if he had no residence address, he was required to “update his . . . registration no less than once every 60 days.” (Former § 290, subd. (a)(1)(C).)
At the time of the charged offenses, section 290 did not define the term “residence,” and the trial court instructed the jury that “the term ‘residence’ means a dwelling place of some permanence which one keeps and to which one intends to return. A residence is not a place where one rests or shelters during a trip or a transient visit.”
In its 2004 amendments to section 290, which took effect after the charged offenses but before the trial in this case, the Legislature defined “residence” as “a place where a person is living or temporarily staying for more than five days, 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.” (Former § 290, subd. (a)(1)(C)(vii), as amended by Stats. 2004, ch. 429, § 1, p. 4; Stats. 2004, ch. 761, §§ 1.3 & 2, pp. 39-50, eff. Jan. 1, 2005 [hereafter 2004 version of former § 290].) The definition of “residence” was later amended to eliminate the five-continuous-day stay requirement. (Former § 290, subd. (a)(1)(C)(vii), as amended by Stats. 2005, ch. 722, § 3.5, eff. Oct. 7, 2005 [hereafter 2005 version of former § 290].) Former section 290 was repealed effective October 13, 2007, and has been rewritten and subdivided in various sections. “Residence” is currently defined in section 290.011 as “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.” (§ 290.011, subd. (g), added by Stats. 2007, ch. 579, § 19, eff. Oct. 13, 2007.)
A.
Relying on the current definition of “residence” defendant contends that “from August 18, 2004 through December 13, 2004, [he] had a residence with an address; thus he could not now properly be convicted under the [People’s] transient/no residence theory even if he did not register every 60 days.” Therefore, “the [People’s] transient/no residence theory of guilt is not legally applicable.” Because “[t]he jury’s verdict on count 4 does not indicate upon which legal theory . . . the jury based its finding of guilt,” defendant argues his conviction on count 4 must be reversed. We are not persuaded.
The current definition of “residence” is identical to the 2005 version of former section 290, which was the definition defendant’s appellate counsel relied upon in preparing his arguments in this appeal. (Compare former § 290, subd. (a)(1)(C)(vii), added by Stats. 2005, ch. 722, § 3.5, eff. Oct. 7, 2005, with § 290.011, subd. (g), added by Stats. 2007, ch. 579, § 19, eff. Oct. 13, 2007.)
“Where a criminal statute is amended to repeal another criminal statute, reduce the punishment for a criminal offense, or modify the elements of a penalty enhancement, an offender of the law that has been so amended is entitled to the benefit of the amendment unless the Legislature indicates a contrary intent.” (People v. Roberts (1994) 24 Cal.App.4th 1462, 1466, citing In re Estrada (1965) 63 Cal.2d 740, 748-749.)
The problem here is that defendant has failed to establish he would benefit if the current definition of residence were applied to the facts of this case. In particular, he has failed to show that he had a residence, and that the People’s transient/no residence theory is therefore legally inapplicable.
Defendant’s claim that he had a residence from August 18 through December 13, 2004, is based solely on the fact that the places at which he stayed--his workplace, his daughter’s home, and various motels--had addresses. That a particular location has an address, however, does not mean it is a residence within the meaning of former section 290, subdivision (a)(1)(A) or the 2004 version of former section 290, subdivision (a)(1)(C)(vii) (in effect until Oct. 7, 2005). As previously discussed, residence is currently defined as “one or more addresses at which a person regularly resides.” (§ 290.011, subd. (g), italics added.) Thus, only those addresses at which a defendant “regularly resides” constitute a residence. (Ibid.) Defendant does not argue on appeal, much less establish as a matter of law, that he regularly resided at his workplace, his daughter’s home, or any of the motels at which he stayed. Accordingly, he has failed to establish that he had a residence, as that term is currently defined, and that the People’s transient/no residence theory is therefore legally inapplicable.
B.
Again relying on the current definition of “residence,” defendant next contends that “the definition . . . given by the trial court is wrong” and his conviction on count 4 must be reversed because “[u]nder the instruction given, the jury could have found [him] guilty of count 4 under the ‘60-day/no residence’ theory . . . even though, under [the current version of section 290], he had a residence with an address.” Again, we are not persuaded.
Even assuming, as defendant contends, that we must apply the current definition of residence in reviewing his claim, it fails because there is no reasonable probability that he would have obtained a more favorable result had the jury been so instructed with the current definition of “residence.”
As explained in part I.A. of the Discussion, ante, the jury was not precluded from finding defendant guilty under the “60-day/no residence” theory even if the current definition of residence is applied.
To the extent the jury found defendant guilty under the theory that he failed to register within five days of obtaining a new residence, we are convinced it would have reached the same verdict had it been instructed with the current definition of residence.
Section 290.011, subdivision (g) currently defines residence as “one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there.” The trial court instructed the jury that a residence is “a dwelling place of some permanence which one keeps and to which one intends to return” and “not a place where one rests or shelters during a trip or a transient visit.” (Italics added.)
Defendant testified that he registered the Alice Street address as his residence because he “was removed from [his] household” and his cousin agreed he “could use the shop as an address and a place to store all [his] belongings.” Although he was not living at that address, everything he owned was there and he spent most of his time there. He slept there only “once or twice.” Between August and December 2004, defendant lived at “various motels” and stayed at his daughter’s house “maybe a night or two.”
Given these facts, we are convinced that if the jury found that neither defendant’s workplace, nor his daughter’s house, nor the various motels at which he stayed constituted “a dwelling place of some permanence” which defendant kept and to which he intended to return, the jury likewise would have found that he did not “regularly reside” at any of those places. Accordingly, it is not reasonably probable that he would have obtained a more favorable result had the jury been instructed with the current definition of “residence.” (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
C.
Noting that “[o]ne of the bases for the conviction on count 4 was that [he] did not register upon changing his ‘location,” defendant argues that “the provision[s] [of former section 290] regarding registration when a defendant changes his location are void because they are vague, and thus unconstitutional.” In making this argument, he relies on People v. North (2003) 112 Cal.App.4th 621 (North).
In count 4, the People elected to proceed under two alternative theories, both of which were listed on the verdict form. As noted, one of those theories was that defendant failed to register as a sex offender “within five working days of obtaining a new residence address or location” in violation of former section 290, subdivision (a)(1)(A). (Former § 290, subd. (a)(1)(A).) The verdict form did not require that the jury specify the theory upon which the verdict was based. Thus, we do not know that defendant’s conviction was based on his failure to register after obtaining a new location, as defendant seems to suggest, only that it may have been. While not raised by the parties, we note that the jurors were not required to “unanimously agree on the basis or, . . . the ‘theory’ whereby the defendant is guilty.” (People v. Russo (2001) 25 Cal.4th 1124, 1132; see also id. at pp. 1134-1135.)
In North, the defendant prevailed on his statutory challenge to his convictions for violating an earlier version of section 290, subdivisions (a)(1)(A) and (f)(1). The Court of Appeal concluded that “section 290 does not give transient sex offenders fair notice of what they must do to conform with the registration requirements governing changes of ‘location.’ We also conclude transient offenders can only guess at what is meant by the requirement that they register at every ‘location’ they regularly occupy in a single jurisdiction. (§ 290, subd. (a)(1)(B).) Section 290 fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. Accordingly, we hold the provisions governing changes of ‘location’ and registration at multiple ‘locations’ within a jurisdiction unconstitutionally vague.” (North, supra, 112 Cal.App.4th at p. 624; see also id. at p. 634.) Relying on this language, defendant argues that his “conviction on count 4 is plagued with the same constitutional vagueness problems as was the defendant’s conviction in North. [Defendant] testified he did not register his locations because they were not permanent and he was not a transient because he was not living on the streets. The prosecutor argued that he must ‘register a change of transient location . . . even if his location is not [his] residence.’ Under the statute as it read in 2004, no defendant--[defendant] included--could ever have known the ‘location’ registration requirements. Therefore, count 4 must be reversed.”
Defendant, however, ignores that the North court did not find the earlier version of section 290 in its entirety unconstitutionally vague. (North, supra, 112 Cal.App.4th at pp. 624, 635-636.) The court explained that the section 290 registration requirements at the time, as applied to “offenders who change status from resident to transient,” “pass muster under the vagueness doctrine, so long as transient offenders are not required to provide the authorities with statutorily unspecified ‘locations.’ An offender registered as a resident who becomes transient has five working days to reregister as a transient under the terms of section 290, subdivisions (a)(1)(A) and (e)(2)(E).” (North, at p. 635.)
In People v. Musovich (2006) 138 Cal.App.4th 983, 992 (Musovich), we rejected the defendant’s contention that his conviction for violating an earlier version of section 290, subdivision (a)(1)(A) must be reversed because the statute is unconstitutionally vague.
In Musovich, this court considered a version of section 290 enacted in 2002. (Musovich, supra, 138 Cal.App.4th at p. 985, fn. 1; Stats. 2002, ch. 664, § 171.)
In discussing North, we observed that “[u]ltimately, the North court determined that North’s conviction for failing to register upon his change from a resident to a transient had to be reversed, but not because section 290 was unconstitutionally vague in this regard. The court explained: ‘The provisions governing reregistration after a change from residential to transient status are not unconstitutionally vague, as we have construed them.’” (Musovich, supra, 138 Cal.App.4th at p. 991.)
Accordingly, in Musovich, we upheld the defendant’s conviction under a 2002 amendment to section 290, subdivision (a)(1)(A) on the ground the statute, as applied to the defendant, was not unconstitutionally vague. (Musovich, supra, 138 Cal.App.4th at p. 991; see fn. 6, ante.) We explained: “Former section 290, subdivision (a)(1)(A) reasonably can be construed to require an offender who leaves his residence to reregister with the law enforcement agency where he currently is residing or located. It is only when a transient offender moves from location to location that the concept of change of residence does not apply and the concept of change of location is the sole governing criterion--a criterion North held is unconstitutionally vague unless the change of location is to another jurisdiction.” (Ibid., citing North, supra, 112 Cal.App.4th at pp. 634-635, italics added.)
We noted that it did not matter whether the defendant moved from a residence to another residence or became a transient: “It is of no consequence whether defendant had moved to the address where law enforcement found him on September 11, 2003, or was merely a transient who was temporarily there. It still can be said he changed his residence, so as to trigger the reregistration requirement. Case law interpreting the word ‘changes’ in the context of the sex offender registration statute states that its primary dictionary definition is to make ‘“‘different in some particular.’”’ [Citation.] [Fn. omitted.] There can be no doubt that when an offender leaves the residence at which he has registered, he has made his residence different.” (Musovich, supra, 138 Cal.App.4th at p. 992.) We thus held that the defendant violated a 2002 version of section 290, subdivision (a)(1)(A) because he “clearly had changed his residence . . ., triggering a duty to reregister, and he knew of such a duty.” (Musovich, at p. 992.)
The same is true here. On August 18, 2004, defendant registered his address as “1240 Alice Street, No. B.” It is undisputed that defendant eventually left that address, thereby triggering the duty to reregister. This is true whether he moved to a different residence, obtained an additional address, or became a transient. (Musovich, supra, 138 Cal.App.4th at p. 992.) Accordingly, we reject defendant’s claim that former section 290 is unconstitutionally vague as applied to him.
II. Visible Leg Restraints
Defendant contends “[t]he trial court prejudicially abused its discretion by refusing to remove the visible restraint on [his] leg when there was no evident necessity therefor.” We need not decide whether the court abused its discretion because, even assuming that it did, we conclude the error was harmless.
The California Supreme Court has “consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584.) If the record does not affirmatively show that the jury saw the restraints, any error in imposing such restraints is tested under the reasonably probable test of Watson, supra, 46 Cal.2d 836. (People v. Jackson (1993) 14 Cal.App.4th 1818, 1829.)
Defendant presented no evidence that any juror, in fact, saw the restraints. Defense counsel objected to the use of visible restraints, and the trial court responded that it did not “believe” the leg restraints were visible, noting that defendant “is sitting at a table that’s enclosed. The jury doesn’t see him.” Defense counsel disagreed, arguing that the jury “could easily see [defendant] walking in. There’s no--when I move my chair back, there is nothing blocking the view.” The court concluded: “That’s all we’ve got.” The restraints were removed before defendant testified.
Contrary to defendant’s assertion, defense counsel’s statement that the jury could see defendant when they entered the courtroom does not establish the jury saw the leg restraints. Nor is there any evidence in the record that the use of the restraints had any impact on defendant’s mental state during trial, as defendant suggests. In the absence of any showing that the jury saw the restraints or that they had an adverse effect, we find it is not reasonably probable a more favorable result would have been reached in the absence of use of the leg restraints. (Watson, supra, 46 Cal.2d at p. 836.) Our finding is bolstered by the fact that the jury acquitted defendant of making criminal threats, the only offense alleged that involved violence.
III. Upper Term
Finally, defendant claims the imposition of the upper term on count 2 violated his Sixth Amendment right to a jury trial. We disagree.
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) Such is the case here.
Black II was decided after the briefing in this appeal was completed.
As a preliminary matter, we reject the People’s assertion that defendant forfeited the issue by failing to raise it in the trial court. Defendant was sentenced on October 12, 2005. Before that, on June 20, 2005, our Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Black I was controlling law at the time of defendant’s sentencing. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)
Turning to the merits, in deciding to impose the upper term, the trial court relied on the following circumstances in aggravation: “[Y]ou have engaged in violent conduct, which indicates a danger to society. Your prior convictions are numerous, and your performance on probation was unsatisfactory.”
The trial court’s finding that defendant’s prior convictions are numerous “is justified based upon the defendant’s record of prior convictions,” which includes at least five prior convictions. (Black II, supra, 41 Cal.4th at pp. 816; see also id. at pp. 818-820.) A defendant’s constitutional right to a jury trial is not violated by the trial court’s imposition of the upper term sentence where at least one aggravating circumstance was established by means that satisfy the requirements of the Sixth Amendment. (Black II,at pp. 805-806.) Because defendant’s numerous prior convictions rendered him eligible for the upper term sentence, “his Sixth Amendment right to jury trial was not violated by imposition of the upper term.” (Id. at p. 820.)
DISPOSITION
The judgment is affirmed.
We concur: HULL , Acting P.J., ROBIE , J.