Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. MF008710A Louis P. Etcheverry, Judge.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On July 10, 2009, the Kern County District Attorney filed an information in superior court charging appellant Cody Shane Crouch as follows: count 1–willful failure to register as a sex offender within five working days of coming into or changing his residence within a jurisdiction (Pen. Code, § 290, subd. (b)); and count 2–willful failure to notify the last registering agency of his move (§ 290.013, subd. (a)). The district attorney specially alleged appellant had sustained prior convictions for rape, penetration with a foreign object, and robbery (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
All further statutory citations are to the Penal Code unless otherwise indicated.
On July 20, 2009, appellant was arraigned, pleaded not guilty to the substantive counts, denied the special allegations, and requested a jury trial of the charges.
On September 9, 2009, the court ordered a bifurcated court trial of the special allegations. Jury trial commenced the same day.
On September 22, 2009, the jury returned verdicts finding appellant guilty as charged of the substantive counts. On the same date, the court conducted a trial of the special allegations and found them to be true.
On December 3, 2009, the court denied appellant probation and sentenced him to a total term of 25 years to life on count 1 (§ 667, subd. (e)). The court stayed sentence on count 2. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 246 days of custody credits.
On the same date, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
General Facts
On September 9, 1987, appellant sustained a conviction requiring his registration as a sex offender (§ 290). Appellant served the prison sentence associated with his conviction and was discharged from parole in May 1999. By 2008, appellant had been registering for approximately 12 years. Appellant registered in Torrance, California on May 8, 2008. He resided with his sister on Sonoma Street in Torrance and had lived there for about two and one-half years. Appellant’s registration in Torrance included his phone number and contact information for both his mother and sister.
Pursuant to appellant’s request, we take judicial notice that Torrance is located in Los Angeles County. (Evid. Code, §§ 452, subd. (h), 453, 459.)
At the time of his registration in Torrance, appellant acknowledged certain written registration requirements by initialing them. The registration form, entitled “Sex Registration/Change of Address/Annual or Other Update – 290 P.C.” (Department of Justice Form No. SS-8102S), stated in relevant part:
“My responsibility to register as a sex offender is a lifetime requirement. [¶] … [¶]
“Upon coming into, or when changing my residence address within a city and/or county in which I am residing, I must register or re-register in person within five (5) working days as a sex offender with the law enforcement agency having jurisdiction over my residence.
“If I change my registered address to a new address, either within the same jurisdiction, or anywhere inside or outside of the state, I must inform the last registering agency or agencies in person within (5) working days before I leave. If I do not know my new residence address, I must later notify, by registered or certified mail, the last registering agency or agencies of the new address or transient location within five (5) working days of moving to the new address or location. [¶] … [¶]
“If I have more than one residence address at which I regularly reside (regardless of the number of days or nights I spend at each address), I must register all of the addresses with the law enforcement agency or agencies having jurisdiction over these residences.”
Testimony of Detective Herrera
Torrance Police Detective Rosemary Herrera testified she registered appellant in May 2008 and explained that it was important for him to follow all of the written requirements:
“Basically since I registered him, I needed to know where he was going to be at regardless of how long he was going to be there. And he had to call me, he had to come in or it had to be done by certified mail. And he had to do this. And then told him it was five business days within this move. Or if he was going to be having additional addresses. I told him, you know, that he could be charged with a crime if he didn’t do this. And I also told him he had to register with the agency wherever, whatever agency had jurisdiction of where he was going to be staying.”
Detective Herrera also explained to appellant that he needed to register and let her know of his whereabouts if he was gone for two, three, or four weeks. She testified that upon a change of residence, appellant needed to notify the county he was departing and the county he was entering within five days. Appellant never informed Detective Herrera he was living in Rosamond, Kern County, California.
Testimony of Deputy Gagnon
Kern County Deputy Sheriff Dennis Gagnon testified he was assigned to the Mojave Substation on February 23, 2009. At 4:15 p.m. that day, Deputy Gagnon was traveling on Backus Road, the dividing line between the communities of Rosamond and Mojave. Gagnon conducted a traffic stop of a vehicle driven by appellant because the vehicle, a truck, had no front or rear license plates. Appellant said he had no identification with him and gave his name as “Joseph Cahill” and birthdate as November 24, 1968. Appellant claimed his driver’s license was from Oklahoma and said he did not know his Social Security number. Gagnon conducted a records check for Oklahoma and California but did not find any records for a “Joseph Cahill.” Appellant became nervous and agitated and said he could provide information from his wallet, which was located in a motor home one-half mile away from the stop.
Gagnon accompanied appellant to the motor home on Joshua Lane and appellant gave Gagnon written and oral permission to enter the vehicle and explained the location of the wallet inside the motor home. Robert Downs, the owner of the real property upon which the motor home was parked, supplied the keys to the motor home. Gagnon was unable to find the wallet when he first entered the motor home. Gagnon went outside and spoke with appellant, who said his true name was Cody Crouch. Gagnon was never able to find the wallet but did find “a couple of pieces of paper with a couple of documents with his name, true name, on it, Cody Crouch.” Appellant told Gagnon he had been living in the Rosamond area because he was avoiding a warrant and said that is why he gave false information to the deputy. Appellant said he believed there was a warrant out for him from the Torrance Police Department.
Several days after the traffic stop, Gagnon became aware that appellant was a registered sex offender. Gagnon spoke with Robert Downs and Diana Daunert, both of whom lived on Joshua Lane, and asked whether appellant had resided on their respective properties. During his February 23, 2009, interview with Gagnon, appellant said he had been living in the Rosamond area at two residences on Joshua Lane “for the past few months because he was on – what he felt he was on the run from a warrant out of the City of Torrance.” Gagnon determined that under section 290, appellant had to inform any jurisdiction where he goes longer than five working days of his new location.
Deputy Gagnon acknowledged his April 8, 2009, report bore a Torrance address for the appellant. Gagnon said he spoke with appellant’s mother by telephone and she said appellant “was transient, homeless.”
Testimony of Stephanie Kennedy
Stephanie Kennedy, an Officer Service Specialist with the Kern County Sheriff’s Department, testified she was the supervisor of the Registration Unit and the person who actually registers people under section 290 in Kern County. She said appellant was not registered in Kern County. She ran appellant’s name and found his registration current in Torrance, California.
Testimony of Robert G. Downs
Robert G. Downs testified he lived in Mojave and became acquainted with appellant. Downs said appellant was driving a motor home by his house one day in January or February 2009 and the vehicle broke down or ran out of gas on the roadway. Downs invited appellant to park the motor home on his property until he could “get it going again.” Appellant told Downs he had been living “down the road, ” at an animal rescue property. Appellant used Downs’s telephone, contacted people, and was eventually able to get the motor home working again. However, appellant stayed in the motor home on Downs’s property for a period of three to four weeks before getting the motor home operational. Downs said he saw appellant “about every day” during that period and did not initially recall appellant leaving the Mojave area. Later in his testimony, appellant remembered that appellant left one weekend and came back with a Chevrolet pickup truck. Appellant was gone about two or three days.
One day, a Sheriff’s deputy came to Downs’s home and asked for the keys to the motor home. Appellant had left the keys with Downs in case something happened or Downs needed access to the vehicle. Downs said appellant was “a perfect gentleman” throughout the time he resided on Downs’s property.
Testimony of Diana Daunert
Diana Daunert, a school teacher residing in Mojave, testified she was involved with rescue animals and received a call from a veterinary hospital manager in December 2008. The manager, a longtime acquaintance of Daunert, said a homeless man needed help with two pit bull dogs that were just spayed and neutered. A woman named Holly called Daunert a number of times and said her husband or boyfriend, the appellant, could do plumbing work in exchange for Daunert providing care to the two dogs. Daunert and appellant made an agreement by which he would perform some work for her in exchange for him leaving his dogs with her.
At some point, Daunert advised appellant “if he was boarding dogs, it would definitely cost money.” She eventually agreed to a barter arrangement by which “[she] was taking care of the dogs and letting them be on the property and be safe in exchange for him helping us finish this fencing over the pens.” Appellant’s sister, Theresa Crouch, explained: “In order for them to take the dogs there was a $500.00 deposit for each dog, so they worked out a deal, he was going to build kennels and cages for the animals they had there.”
Appellant stayed and worked at Daunert’s home for four days sometime prior to Christmas 2008. He left because his girlfriend, Holly, said she had a job for him at a Christmas tree farm. He left the dogs, departed her home on December 19, and returned sometime between January 3 and 5, 2009. In December, someone dropped appellant off at Daunert’s home and appellant’s mother and her boyfriend apparently picked him up. In January, appellant arrived in a motor home. Appellant stayed in the motor home on her Mojave property until the Tuesday or Wednesday of the week preceding February 17, 2009. Daunert believed she saw appellant every day on his second trip to Mojave. On weekends she went to West Los Angeles to conduct animal adoptions but returned to her Mojave home each evening.
During the time his motor home was in Mojave, appellant was away on several occasions. On the first occasion, he assisted Daunert in accepting a large donation of dog food and was gone overnight. On the next occasion, he was gone for a few hours to discuss a possible exchange of his motor home for another vehicle. On the third occasion, he went with Daunert to Lancaster to help with the renovation of a home. On that day, Daunert dropped appellant off at the Lancaster house and picked him up later.
On the first occasion, the trip for dog food, Daunert “MapQuested him a place that was near Vermont and Century, ” in the area of Torrance. On that trip, appellant stayed in Los Angeles and returned to Kern County on the train the next day. At some point during the trip for dog food, appellant told Daunert he had a major fight with his wife and family and was never going back to them.
Daunert, a year-round school teacher, said she returned to work on February 17, 2009. During the time appellant was parked on her property, he hooked up the water and electricity to his vehicle. However, he did not receive mail at the motor home. When appellant departed the week preceding February 17, he drove his motor home and parked it on the property of a nearby neighbor for a few weeks. Before appellant left Daunert’s home, he said he intended to go to Oklahoma, where a relative owned a Harley-Davidson dealership. Appellant said was going to start a plumbing business in Oklahoma. Daunert considered the mobile home appellant’s residence “[o]nly temporarily till he could go” to Oklahoma.
Defense Evidence
Testimony of Investigator Larry Smith
Larry Smith, an investigator with the Office of the Kern County Public Defender, testified he interviewed Diana Daunert. Daunert told Smith that appellant stayed with her for three weeks and that appellant left several times during that period. On one occasion she gave appellant a ride. On another occasion, “the mother and … a boyfriend had come to pick up Cody to give him a ride back home.” The latter trip had nothing to do with appellant’s departure in December. Daunert also told Smith that appellant had stayed with her in December, January, and February.
Testimony of Appellant’s Mother
Appellant’s mother, Barbara Faye Ann Smith, testified appellant always resided in Torrance, either with Smith, with his then-wife, Betsy, or with his sister. Appellant lived with his sister, Theresa, for the two and one-half years preceding February 2009. Smith said appellant went to the Rosamond/Mojave area because he and his girlfriend had a baby and he needed to place his two pit bull dogs. Smith said she took appellant to the Rosamond area and picked him up from there at least three times in January and February 2009. Smith explained that a friend with a truck took appellant and the dogs to Kern County sometime after Christmas 2008 because the dogs would not fit in Smith’s car. Smith acknowledged that appellant had an outstanding warrant for his arrest prior to Christmas 2008. The warrant issued after appellant had an argument with his girlfriend, Holly Davidson, who was also the mother of his baby.
Later in her testimony, Smith said an officer advised her no warrant had issued for appellant’s arrest.
Smith said the motor home was in storage at Christmastime, and appellant must have picked up the vehicle sometime in January. The motor home was in a storage facility, the rent was paid through January, and the vehicle was taken out of storage on January 4, 2009. Smith did not know for certain that appellant lived out of his motor home in the Rosamond/Mojave area in January. She thought he was working on some kennels and assumed he was “living with the place where the kennels were.” Prior to February 23, 2009, Smith saw appellant once at her daughter’s home before Christmas and then three times in Kern County, possibly in January 2009.
Testimony of Appellant’s Sister
Appellant’s sister, Theresa Lee Crouch, testified appellant was residing with her on Sonoma Street in Torrance in February 2009. She said appellant lived with her for several years, following his divorce. Appellant brought his dogs to live at Theresa’s home, but she asked him to remove the animals because they were tearing up her backyard. Theresa said he resided in her home, stored his personal belongings there, and received his mail there. Crouch identified items of mail addressed to appellant at her home in Torrance. Crouch said appellant came home almost every weekend in January and February 2009. She said he would come home, do laundry, eat, and stay at her residence and then go back to Kern County to check on his dogs and work for people there. In Crouch’s mind, appellant was never gone for a long period of time and she said he would be back after a few days. Crouch said the only time appellant moved was when she changed residences in Torrance and that his residence was on Sonoma Street in Torrance as of February 23, 2009.
Rebuttal Evidence
Testimony of Deputy Sheriff Gagnon
Deputy Sheriff Dennis Gagnon testified he had at least two conversations with appellant’s mother, Barbara Smith. Smith said she did not know where appellant was living. Gagnon admitted he never spoke with Theresa Crouch about where appellant was living.
Testimony of Investigator Larry Smith
Investigator Larry Smith testified he spoke with Barbara Smith on August 6, 2009, and Mrs. Smith said her son, the appellant, was living out of a motor home that had broken down in the desert. Mrs. Smith also told the investigator that she drove to Rosamond one time and picked up the appellant.
Investigator Smith also said he had several telephone conversations with Theresa Crouch. During a July 29, 2009, phone conversation, Crouch said her brother, the appellant, was working at a rescue facility in the desert and was working there long enough so that he could pay the $500 per dog fee to care for his animals. Crouch told Investigator Smith he had been staying in a motor home while performing work at the rescue facility. During trial, Investigator Smith learned that Crouch actually went to the Rosamond area and picked appellant up on one occasion.
DISCUSSION
I. THE INSTRUCTIONS DID NOT FAIL TO REQUIRE THE JURY TO FIND THAT APPELLANT HAD ACTUAL KNOWLEDGE OF THE DUTY TO REGISTER IN KERN COUNTY
Appellant contends reversal is required because the instructions “failed to require the jury to determine whether appellant had actual knowledge that the time he stayed in Kern County constituted [‘residing’] for purposes [of] Penal Code section 290 and that he was required to register there, and such knowledge was an element of the charged offenses.”
A. Allegations of the Information
The district attorney charged appellant in relevant part:
“Count: 001, On or about February 23, 2009, Cody Crouch, who was a person subject to the registration requirements of Penal Code section 290(c), as a sex offender, did willfully and unlawfully fail to register within five working days of coming into, or changing his/her residence, within any city, county, or city and county, or campus in which he/she temporarily resides, in violation of Penal Code section 290(b), a felony pursuant to Penal Code section 290.018(b). [¶] … [¶] “Count: 002, On or about February 23, 2009, Cody Crouch, who changed his/her residence address, whether within or outside Kern County, did willfully and unlawfully fail within five working days of the move to inform, in person, the law enforcement agency or agencies with which he/she last registered of the move, the new address or transient locations, if known, and any plans he/she had to return to California, in violation of Penal Code section 290.013(a), a felony pursuant to Penal Code Section 290.018(b).”
B. Statutes Underlying Counts 1 and 2
Section 290, subdivision (b), as charged in count 1, states:
“Every person described in subdivision (c), for the rest of his or her life, while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.”
Section 290.013, subdivision (a), as charged in count 2, states:
“Any person who was last registered at a residence address pursuant to the Act who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, shall, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, the new address or transient location, if known, and any plans he or she has to return to California.”
C. Stipulation of the Parties
The record on appeal set forth the following stipulations:
“Both parties stipulate that the defendant was previously convicted of an offense for which the defendant is required to register.
“Both parties stipulate that the defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resides.”
D. Instructions Given to Jury
Modified CALCRIM No. 1170 [failure to register as sex offender (§ 290, subd. (b)], as read to the jury, stated with respect to Count 1:
“The defendant is charged in Count 1 with failing to register as a sex offender in violation of Penal Code Section 290(b).
“To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant was previously convicted of a registerable offense. And next to that element in the jury instruction I put s-t-i-p, that’s been agreed to, stipulated. Two, the defendant resided in Kern County, California. Three, the defendant actually knew he had a duty to register as a sex offender under Penal Code Section 290 wherever he resided. And next to three I put another stip, s-t-i-p. You don’t have to reach that, that’s a given. And four, the defendant willfully failed to register as a sex offender with the Sheriff of that county within five working days of coming into or changing his residence within that county.”
Modified CALCRIM No. 1170, as read to the jury, stated with respect to count 2:
“The defendant is charged in Count 2 with failing to register as a sex offender.
“To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant was previously convicted of a registerable offense. And again I wrote stip because that’s been agreed. Two, the defendant resided in Kern County, California. Three, the defendant actually knew he had a duty to register as a sex offender under Penal Code 290 Section wherever he resided. And again, I wrote s-t-i-p for stip on that element. And four, the defendant willfully failed to notify law enforcement in Torrance, California within five working days of coming into or changing his residence to Kern County.”
CALCRIM No. 251 [union of act and intent: specific intent or mental state], as read to the jury, stated:
“The crimes charged in this case require the proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of the crimes charged in Counts 1 and 2 in this case, that person must not only intentionally commit the prohibited act or intentionally fail to do the required act but must do so with a mental state. The act and mental state required are explained in the instructions for that crime.”
Although CALCRIM No. 251, as read to the jury, indicated the required mental state would be explained in the instructions for the specific crimes, the modified CALCRIM Nos. 1170 read with respect to counts 1 and 2 did not define the term “willfully.”
E. Appellant’s Specific Contention
Appellant contends under the facts of this case, the court was required to instruct – and the jury was required to determine – whether appellant actually knew of a duty to register in Kern County. He specifically argues:
“In the instant case, there was no evidence that appellant had ever been informed that a recreational vehicle might be deemed a residence under Penal Code section 290. By its nature, it was a temporary lodging with no fixed address. It appears that appellant took it to Kern County to avoid having to sleep outside in the wintertime while he fulfilled his obligation to Daunert and his dogs.… [¶] … [¶]
“The trial court’s instructions here did not require the jury to find that appellant had actual knowledge of his duty to register the recreational vehicle with the Kern County Sheriff. Further, the trial court’s instructions expressly allowed the jury to find appellant guilty if his actual knowledge was limited to the general duty to register wherever he resides. Even so, the jury struggled with the question of what constituted residing, and sought additional instruction from the court on that issue. [Citation.] The court instructed them to ‘use ordinary, common everyday meaning.’ [Citation.] However, it was not enough for the jury to find that appellant was ‘objectively’ residing in Kern County for it to be deemed a residence for Penal Code section 290 purposes, as the instruction required the jury to find. The jury had to determine whether Kern County was subjective, i.e. by appellant, deemed a place where he resided for Penal Code section 290 purposes. Unless appellant actually knew that Kern County was also, under Penal Code section 290, his residence, his failure to register there could not be a crime.” (Fn. omitted.)
F. Analysis
Sections 290 to 290.023, inclusive, are known as the Sex Offender Registration Act (Act). (§ 290, subd. (a).) Section 290, subdivision (b) provides in pertinent part: “Every person described in subdivision (c), for the rest of his her life while residing in California … shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area … within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.”
This court recently held as to a former version of section 290:
“The purpose of the section 290 registration requirement is to ensure that convicted sex offenders are readily available for police surveillance. The triggering of a sex offender’s five-day notice period is a question for the jury. That question is not dependent upon whether the offender stayed at a residence five or more consecutive days. The duty to register arises when the sex offender enters a jurisdiction and ends when he or she leaves the jurisdiction. (People v. Poslof (2005) 126 Cal.App.4th 92, 103; People v. Davis (2002) 102 Cal.App.4th 377, 382.)
“While the registration requirement of section 290, [former subdivision (a)(1)(A) now subdivision (b)] applie[d] only where the sex offender ‘is residing’ in a given jurisdiction, appellant cites and we are aware of no authority for the proposition that a person ‘is residing’ in a jurisdiction only when staying at a place of residence – that is, an address – that will remain open to that person. We reject this proposition, which confuses the concept of residing in a jurisdiction with having a place of residence there.” (People v. Williams (2009) 171 Cal.App.4th 1667, 1672-1673, fn. omitted.)
This court went on to distinguish the terms “reside” and “residence” in a footnote, stating:
“The verb ‘reside’ is defined by the Random House Dictionary of the English Language (1973) in pertinent part, as ‘1. to dwell permanently or for a considerable time: He resides in Boston.’ (Id. at p. 1220.) [Former] subdivision (a)(1)(C)(vii) of section 290 (currently § 290.011, subd. (g)), defines the term ‘residence’ 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.…” (People v. Williams, supra, 171 Cal.Ap.4th at p. 1673, fn. 2.)
In this case appellant contends modified CALCRIM No. 1170 was erroneous “because it did not tell the jury that the prosecution had to prove defendant had actual knowledge of his duty to register in Kern County.…” !(AOB 10)! The Supreme Court has held: “[A] violation of section 290 requires actual knowledge of the duty to register. [¶] … [¶] … In the registration act context, the jury must find actual knowledge of the act’s legal requirements.” (People v. Garcia (2001) 25 Cal.4th 744, 752, 754 (Garcia).) Here appellant and the prosecution stipulated “that the defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resides.” !(CT 87)! That stipulation did not expressly refer to actual knowledge of the requirement to register in a specific locale, i.e., Kern County. “A stipulation is an agreement between attorneys for adverse parties, relating to a matter involved in a judicial proceeding, and entered into in the manner prescribed by law. [Citations.]” (1 Witkin, Cal. Procedure (5th ed. 2008) § 263, pp. 340-341.) A stipulation is evidence and may be a substitute for proof. (Greatorex v. Board of Administration (1979) 91 Cal.App.3d 54, 58.) A stipulation in proper form is binding upon the parties if it is within the authority of the attorney. (Bechtel Corp. v. Superior Court (1973) 33 Cal.App.3d 405, 411.) A stipulation is also binding upon the court unless it is contrary to law, court rule, or public policy. (Id. at p. 412.)
The unequivocal phrase “wherever he resides” would include a specific locality such as Kern County. Moreover, we expressly held in Williams: “The duty to register arises when the sex offender enters a jurisdiction and ends when he or she leaves the jurisdiction.” (People v. Williams, supra, 171 Cal.App.4th at p. 1672.) Appellant claims he had no knowledge of such a requirement. However, the certification on his Form SS-8102S (sex registration/change of address/annual or other update – 290 P.C.), signed May 8, 2008, stated:
“I have been notified of my duty to register as a sex offender pursuant to Penal Code sections 290 and 290.01. I have read, understood, and initialed each registration requirement specified on page 2 of this form. I understand it is my duty to know the legal requirements as stated in Penal Code sections 290 and 290.01, including changes to the law that may be made in the future.”
The initialed registration requirements on page two of his Form SS-8012S included the following:
“Upon coming into, or when changing my residence address within a city and/or county in which I am residing, I must register or re-register in person within five (5) working days as a sex offender with the law enforcement agency having jurisdiction over my residence.
“If I change my registered address to a new address, either within the same jurisdiction, or anywhere inside or outside of the state, I must inform the last registering agency or agencies in person within five (5) working days before I leave. If I do not know my new residence address, I must later notify, by registered or certified mail, the last registering agency or agencies of the new address or transient location within five (5) working days of moving to the new address or location.
“If I am registered at a residence address and become transient or if I am registered as a transient and move to a residence, I shall have five (5) working days within which to register with the law enforcement agency having jurisdiction over the new address or transient location.
“If I have no residence address, I must register in the jurisdiction where I am physically present as a transient within five (5) working days of becoming transient.… [¶] … [¶]
“If I have more than one residence address at which I regularly reside (regardless of the number of days or nights I spend at each address), I must register all of the addresses with the law enforcement agency or agencies having jurisdiction over these residences.”
Appellant thus acknowledged in advance a wide variety of registration scenarios [i.e., coming into or changing registration of a residence address in the city or county in which he is residing; changing a registered address to a new address either within the same jurisdiction or anywhere inside or outside of the state; changing from a registered residence address to become transient or changing from registration as a transient to move to a residence; registration in the jurisdiction where he is physically present as a transient if he has no residence address; and registration of multiple residences]. He nevertheless contends or implies that actual knowledge of a duty to register in Kern County was not subsumed within his stipulation and that failure to instruct on such a knowledge requirement was prejudicial.
Appellant essentially posits a situation in which a sex offender registers in one locale and then freely travels to other cities or counties for periods of relatively brief duration without incurring any additional registration obligation. This would run contrary to our recent holding that “[t]he purpose of the section 290 registration requirement is to assure that convicted sex offenders are readily available for police surveillance.” (People v. Williams, supra, 171 Cal.App.4th at p. 1672, italics added.) Even if appellant claimed he lived in Kern County only four days per week, that fact alone would not have excused noncompliance with the statutory registration requirement. Division Two of the Fourth Appellate District has made clear: “There is no language in section 290 that states or implies that a sex offender need not register if he stays at a second or additional location for less than five consecutive days. The reference in the statute to ‘five working days’ pertains to the time in which a sex offender must notify law enforcement of his location upon entering or leaving a jurisdiction or establishing a second or additional location or residence.” (People v. Poslof (2005) 126 Cal.App.4th 92, 102.)
Appellant implies he did not believe he “resided” in Kern County and claims other case law supports his position. In People v. Edgar (2002) 104 Cal.App.4th 210, a San Mateo County jury convicted defendant of willfully violating the notification provisions of the state sex offender registration law. Division Two of the First Appellate District reversed the judgment of conviction. Although there was evidence at trial that defendant had actual knowledge of the general duty to register a change of address with the appropriate law enforcement agency, the prosecution presented no evidence to show that defendant knew his acquisition of a second residence address constituted a change in residence requiring registration of the new address. Under the instructions and evidence presented at trial, the jury could not have found that appellant actually knew of the requirement of registering multiple residences. The appellate court could not conclude beyond a reasonable doubt that the same jury, properly instructed on the knowledge requirement, would have found that appellant was aware of his duty to register multiple addresses. (People v. Edgar, supra, 104 Cal.App.4th at pp. 212, 221-222.) The instant case is distinguishable from Edgar in that appellant stipulated he “actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resides.” Moreover, appellant’s May 8, 2008 Form SS-8102S specifically addressed the registration of multiple addresses and his signature block indicated he had “read, understood, and initialed” such registration requirement.
In People v. LeCorno (2003) 109 Cal.App.4th 1058 (LeCorno), defendant registered his residence in San Francisco but not a friend’s San Mateo home as a second residence. Defendant often stayed in the latter home while doing construction work there. He appealed a conviction for failing to register as a sex offender and Division Three of the First Appellate District reversed, finding “the trial court erred in instructing the jury that he willfully failed to register [in San Mateo] even if he did not believe that he had acquired a second residence and was required to register in San Mateo.” (LeCorno, supra, at p. 1067.) The appellate court noted there was strong evidence to support a finding that defendant did not know the nights he spent sleeping in his friend’s basement made the San Mateo address a second residence, and he therefore did not know he was required to register in San Mateo. In contrast, appellant in this case stipulated he “actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resides.” Moreover, appellant’s May 8, 2008 Form SS-8102S acknowledged his responsibility to register “[i]f I have more than one residence address at which I regularly reside (regardless of the number of days or nights I spend at each address).…”
In People v. Jackson (2003) 109 Cal.App.4th 1625 (Jackson), defendant was prosecuted for a continuing violation of the registration statutes from June 1997, when he went from Seaside to San Jose, to April 1998, when he was arrested. Defendant was convicted of one count of failing to register as a sex offender. He appealed, contending he had no actual notice or knowledge that he was required to register at two addresses. The Sixth District Court of Appeal reversed because there was no evidence of defendant’s actual knowledge that he knew he was required to register additional addresses. The court noted during the time period applicable to defendant’s case, former section 290 did not address the issue of multiple residences and there was no instruction requiring evidence that defendant actually knew of a multiple residence registration requirement. Once again, in this case appellant stipulated he “actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resides” and his May 8, 2008 Form SS-8102S specifically addressed the issue of multiple residences.
Unlike the juries in Garcia, LeCorno, and Jackson, supra, the jury in this case was instructed that appellant “actually knew he had a duty to register as a sex offender under Penal Code 290 wherever he resided.” The instructions in Garcia, LeCorno, and Jackson, in contrast, allowed the jury to convict even where the defendants were unaware of their obligation to register a second residence. Moreover, Torrance Police Detective Herrera testified she reviewed a registration form with appellant in May 2008. Detective Herrera said she asked appellant to read and initial each requirement on the form. One of the requirements stated: “Upon coming into, or when changing my residence address within a city and/or county in which I am residing, I must register or re-register in person within five (5) working days as a sex offender with the law enforcement agency having jurisdiction over my residence.” An additional requirement specifically addressed multiple residences regardless of the number of days or nights spent at each address.
In evaluating the adequacy of jury instructions, the question is whether there is a reasonable likelihood the jury understood the charge as the defendant asserts. An appellate court considers the specific language under challenge and, if necessary, the charge in its entirety. We determine whether the instruction, so understood, states the applicable law correctly. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.) Here, modified CALCRIM No. 1170 adopted the stipulated language that appellant “actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resides.” That language avoided the deficiencies in the instructions condemned in Garcia, LeCorno, and Jackson. Reversal for instructional error is not required.
Appellant also contends “[i]f counsel had a duty to request an instruction that the prosecution had to prove that appellant knew that the recreational vehicle in Kern County constituted for Penal Code section 290 purposes a residence, then he was ineffective in failing to do so.” If, as here, “the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, the claim must be rejected on appeal, unless there simply could be no satisfactory explanation.” (See People v. Kraft (2000) 23 Cal.4th 978, 1069.) Here, appellant claims “there can be no tactical reason for failing to properly request an instruction that can only benefit the defendant.” Here, defense counsel could have reasonably declined to proffer the suggested instruction given the fact the stipulated phrase “wherever he resides” comprised Kern County.
II. THE TRIAL COURT DID NOT ERRONEOUSLY GIVE CALCRIM NO. 207 [PROOF NEED NOT SHOW ACTUAL DATE]
Appellant contends the giving of CALCRIM No. 207 was erroneous under the circumstances of this case because it deflected the jury’s attention from an element the prosecution was required to prove beyond a reasonable doubt.
He specifically argues:
“The information in the instant case charged appellant with failures to register ‘on or about February 23, 2009.’ [Citation.]
“The jury was instructed with CALCRIM number 207 as follows: ‘It is alleged that the crime occurred on or about 2-23-09. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.’
As set forth in the reporter’s transcript, the instruction stated: “It is alleged that the crime occurred on or about February 23rd, 2009. The People are not required to prove that the crime took place exactly on that date but only that it happened reasonably close to that date.”
“The statute under which appellant was charged had a temporal element that the prosecution was required to prove – that appellant had been in Kern County for the five consecutive days necessary to trigger an obligation to register. (Pen. Code, §§ 290, subd. (b), 290.013, subd. (a).) … [¶] … [¶]
“In the instant case, part of appellant’s defense was that he was not in Kern County for five consecutive days so as to trigger a duty to register there. The jury was required to determine whether appellant spent five consecutive days in Kern County so as to trigger a duty to register. Thus, CALCRIM number 207 deflected the jury’s attention from a temporal detail that was relevant to the defense, and undermined the requirement of proof beyond a reasonable doubt by telling the jury that ‘reasonably close’ was good enough.”
“There is no language in section 290 that states or implies that a sex offender need not register if he stays at a second or additional location for less than five consecutive days. The reference in the statute to ‘five working days’ pertains to the time in which a sex offender must notify law enforcement of his location upon entering or leaving a jurisdiction or establishing a second or additional location.” (People v. Poslof, supra, 126 Cal.App.4th at p. 102.) Similarly this court has held: “The purpose of the section 290 registration requirement is to assure that convicted sex offenders are readily available for police surveillance. The triggering of a sex offender’s five-day notice period is a question for the jury. That question is not dependent upon whether the offender stayed at a residence five or more consecutive days. The duty to register arises when the sex offender enters a jurisdiction and ends when he or she leaves the jurisdiction.” (People v. Williams, supra, 171 Cal.App.4th at p. 1672.)
Although CALCRIM No. 207 referenced an approximate commission date of February 23, 2009, for the crime of nonregistration, CALCRIM No. 1170 as read to the jury clearly advised as to the elements of the statutory offense, including: “[t]he defendant willfully failed to register as a sex offender with the Sheriff of that county within five working days of coming into or changing his residence within that county.” The reference to a date of commission in CALCRIM No. 207 did not deflect the jury’s attention from the elements set forth in CALCRIM No. 1170 or diminish the prosecution’s burden of proof. Pursuant to CALCRIM No. 251, the court advised the jury that to find appellant guilty of the crimes charged in counts 1 and 2, they were required to find that appellant intentionally committed or failed to do the required act and did so with a specified mental state set forth in the instruction for the substantive crime. CALCRIM No. 1170, as read to the jury, required the prosecution to prove four elements, including appellant’s failure to register as a sex offender with the Kern County Sheriff within five working days of coming into or changing his residence in Kern County. Nothing in the record rebuts the well-established presumption that jurors are able to correlate, follow, and understand the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We reject appellant’s challenge to CALCRIM No. 207.
III. THERE WAS SUFFICIENT EVIDENCE TO SHOW THAT APPELLANT WAS RESIDING IN KERN COUNTY
Appellant contends the evidence was insufficient for conviction in three different areas. First, he contends the record did not show that appellant actually knew that sleeping in the recreational vehicle in Kern County constituted a residence so as to form a basis for a willful violation of the Act. Second, he contends the evidence was insufficient to establish that appellant had spent five consecutive days in Kern County to trigger the obligation to register. Third, he contends he was not charged with failing to register a second residence and the evidence did not show that he had moved from his registered address in Torrance.
A. Standard of Review
The Supreme Court has set forth the standard rule of appellate rule:
“ ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citations.] The court does not, however, limit its review to the evidence favorable to the respondent. As People v. Bassett [(1968)] 69 Cal.2d 122 … explained, “our task … is twofold. First, we must resolve the issue in the light of the whole record – i.e., the entire picture of the defendant put before the jury – and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements … is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for ‘Not every surface conflict of evidence remains substantial in the light of other facts.’ ” ’ (People v. Johnson (1980) 26 Cal.3d 557, 576-577.)” (People v. Dominguez (2006) 39 Cal.4th 1141, 1153.)
B. Substantial Evidence of Appellant in Kern County for Five Consecutive Working Days
Appellant contends it was speculative whether he was in Kern County for any consecutive five-day period. He points out “there was uncontested prosecution evidence that appellant … had returned to Los Angeles County at least three times, as well as evidence offered by the defense that appellant returned to his residence in Los Angeles regularly.”
Appellant’s contention is misplaced. As we have held in the Williams case:
“The purpose of the section 290 registration requirement is to assure that convicted sex offenders are readily available for police surveillance. The triggering of a sex offender’s five-day notice period is a question for the jury. That question is not dependent upon whether the offender stayed at a residence five or more consecutive days. The duty to register arises when the sex offender enters a jurisdiction and ends when he or she leaves the jurisdiction.” (People v. Williams, supra, 171 Cal.App.4th at p. 1672.)
In any event, Diana Daunert testified appellant lived in his motor home on her Mojave property continuously from January 4-6, 2009, until the week before February 17, 2009. She said she saw him every day during that period and his only absence took place when he accompanied her on an overnight trip to deliver a load of dog food. Daunert also said no one picked appellant up to take him anywhere on weekends during this period. The testimony of a single witness, if believed by the fact finder, is sufficient to establish a disputed fact. (People v. Young (2005) 34 Cal.4th 1149, 1181; Evid. Code, § 411.)
C. Substantial Evidence of Appellant’s Knowledge that His Stay in Kern County Constituted Residence
Appellant contends the evidence failed to establish he had actual knowledge that he was required to register in Kern County.
Deputy Sheriff Dennis Gagnon testified the appellant gave him the false name of Joseph Cahill and told him “he had been living in the Rosamond area because he was avoiding a warrant.” Appellant told Gagnon he believed there was a warrant out for him from the Torrance Police Department. Deputy Gagnon further testified: “He told me that he had been living in the Rosamond area at two residences, Joshua Lane, for the past few months because he was on – what he felt he was on the run from a warrant out of the City of Torrance.”
The direct evidence of one witness entitled to full credit is sufficient for proof of any fact except where additional evidence is required by statute. (Evid. Code, § 411.) The direct evidence of one such witness is by itself sufficient to constitute substantial evidence for purposes of appellate review. (City and County of San Francisco v. Givens (2000) 85 Cal.App.4th 51, 56.)
Appellant’s claim of insufficient evidence must be rejected.
D. Substantial Evidence of a Move from Appellant’s Registered Address in Torrance
Appellant contends he was not charged with a failure to register a second address and there was no evidence that he had “moved” from his registered address in Torrance.
Section 290, subdivision (b), as charged in this case, requires a person described in subdivision (c) of that statute to register with the appropriate law enforcement official “within five working days of coming into, or changing his or her residence within, any city, county, or city and county.…” As noted above, the duty to register arises when the sex offender enters a jurisdiction and ends when he or she leaves the jurisdiction. Moreover, section 290 refers to “the concept of residing in a jurisdiction” rather than “having a place of residence there.” (People v. Williams, supra, 171 Cal.App.4th at p. 1672-1673, fn. omitted.) To the extent section 290, subdivision (b) required evidence of a “move, ” Deputy Gagnon testified appellant told him he had been living in the Rosamond area of Kern County for two months, at two different residences on Joshua Lane, to avoid a warrant issued by the Torrance Police Department. The testimony of one witness, if believed, is sufficient to prove any fact. (People v. Vega (1995) 33 Cal.App.4th 706, 711, citing Evid. Code, § 411.)
Substantial evidence supported the judgment of conviction.
IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT’S MOTION TO REDUCE THE CHARGES TO MISDEMEANORS OR DISMISS THE STRIKE PRIORS
Appellant contends the trial court abused its discretion in sentencing by failing to reduce his conviction to a misdemeanor and to strike his prior felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. He further contends the trial court relied on speculation and inferences not supported by the record and failed to take into account the nature of appellant’s current offense, his character, and his prospects.
A. Procedural History
On November 9, 2009, appellant filed a request to reduce his charges to misdemeanors or, in the alternative, to dismiss his strike priors under the Three Strikes law in the furtherance of justice (§ 1385). He specifically argued his present offenses were “wobblers, ” his strike priors were old, he was convicted of all of his strike priors in one proceeding, and a life sentence would be cruel and unusual punishment. On November 13, 2009, appellant filed a revised request making similar assertions. On the same date, the prosecution filed written opposition to appellant’s request and argued the trial court could not reduce appellant’s convictions to misdemeanors under section 290.018, subdivision (b) and asserted appellant was a “a career criminal whose record does not merit dismissal of his prior strike.” The prosecution further contended a sentence of 25 years to life was not cruel and unusual in light of state and federal case law.
On December 3, 2009, the court conducted a sentencing hearing, heard the arguments of counsel, and ruled as to appellant’s requests:
“The nature of the current offense in the abstract is less serious than the other previous strike felonies, that being the conviction of Penal Code Section 290. The current offense is not a violent offense. The defendant is 42 years of age. A weapon in the case was not involved. There was no injury or threat to injure any person. He indicated, according to Probation, that he had been employed for one year from 2007 to 2008 in maintenance working capacity. He has an extensive criminal record in addition to the current offense.… The court has considered all of the relevant factors that were offered on behalf of the defendant by Mr. Lidgett [defense counsel] and that are contained in the request to reduce the charge to a misdemeanor. And to exercise the court’s discretion in striking the strike priors.
“In addition to that, I have read and considered the letters that were attached that I put on the record. Including the additional letters that were filed by Mr. Lidgett on behalf of the defendant.
“The court has considered the relevant facts that were offered on behalf of the People in opposition that are contained in the brief that was filed by Ms. Pearl [deputy district attorney].
“I think it is appropriate in the case to just take a look at what we are supposed to do at sentencing. And [sentencing is comprised of] four elements. I have always been involved in those four elements. One is punishment, that is to punish the defendant for what he did. Okay. The other one is rehabilitation, and that’s to try to rehabilitate the defendant. Deterrence, and that is to basically keep the hope that the message gets through to the defendant. And the other one is isolation. And isolation means … we isolate him so he can’t be in a position to commit any of the offenses.
“The court finds, in light of the nature and circumstances of this present felony conviction, and the prior serious felony convictions and the particulars of Mr. Crouch’s background, character, and his prospects, that the defendant may be deemed inside the three strikes spirit in whole and, therefore, the court is not going to strike any of the previous strike convictions that were in 1987, [Penal Code sections] 261.2, 289 (a), and 211.
“And note that the court disagrees and has read the [case of People v. Burgos (2004) 117 Cal.App.4th 1209]. And … Burgos was a case that came out of the same operative facts. All right. Yes, we have the same facts, but you have to look at [what] we have, three distinct crimes in this case, we have a rape by force, we have a penetration by 299(a) and then we have 211. So the court denies the request.” !(RT 278-280)!
B. Appellant’s Contentions on Appeal
Appellant initially notes “[t]he [trial] court adopted the probation report’s evaluation of aggravating and mitigating factors.” Appellant then goes on to review the factors in aggravation and mitigation that the court cited on the record just prior to denying probation and imposing sentence. This recitation took place after the court denied appellant’s request to reduce the convictions to misdemeanors or to strike priors under section 1385. Appellant concludes:
“In making its sentencing decision, the court relied on speculation and inferences not supported by the record, and failed to take into account the nature of the current offense and appellant’s character and prospects. The judgment should be reversed. It should be remanded for consideration of the motion to strike with guidance that a parole violation alone does not indicate criminal conduct; the possibility of future violent conduct based on appellant’s addiction is speculative and not supported by the record; and to consideration [sic] of the unique circumstances of the instant offense. The trial court should be guided not by factors in aggravation, but an examination of the entire set of circumstances involving the individual person and his past criminal offenses, but with primary focus on the particular circumstances which resulting in the failure to register in this case, appellant’s desire to provide for his two pet dogs. It would not be an abuse of discretion to strike two of the prior strikes in this case.”
C. Analysis
We initially note that appellant’s contention may be logically divided into two sub-issues – the ruling on the requests under section 1385 and the sentencing decision made after the denial of the requests under section 1385. We address each sub-issue.
1. Denial of Request Under Section 1385
A trial court has discretion to strike, at a defendant’s request or on its own motion, prior felonies alleged for sentence-enhancement purposes. (Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony allegation, the court must “consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) A trial court is not required to state its reasons for declining to exercise its discretion under Penal Code section 1385. (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) We review a trial court’s decision to deny a motion to strike priors for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The court abuses its discretion if its consideration of the factors set forth in Williams “ ‘falls outside the bounds of reason.…’ ” (People v. Williams, supra, 17 Cal.4th at p. 162.)
Appellate courts must give great deference to discretionary trial court rulings and will disturb them only upon a clear showing of abuse which results in a manifest miscarriage of justice. (See People v. Jordan (1986) 42 Cal.3d 308, 316.) A trial court abuses its sentencing discretion only where the trial court was unaware of its discretion to strike, the court considered impermissible factors, or where the court’s mechanical application of the statute yields “an ‘arbitrary, capricious or patently absurd’ result.…” (People v. Carmony, supra, 33 Cal.4th at pp. 376-378.) Section 1385 does not require that the trial court explain why it is exercising its discretion not to strike a prior. (People v. Carmony, supra, at p. 376.) We can presume the trial court properly considered all the arguments made and rejected them all in light of its decision not to strike. (Ibid.)
In this case, the court read and considered the papers filed by the defense and prosecution with respect to the request under section 1385. The prosecution’s opposition papers noted that appellant was sentenced to 14 years in state prison in 1987 for three felony strike convictions, forcible rape (§ 261.2), sexual penetration with a foreign object with force (§ 289, subd. (a)), and robbery (§ 211). The prosecution observed: “The defendant’s convictions in 1987 resulted from an extreme set of facts: the defendant misrepresented his identity to an elderly woman and then, once he made his way into her apartment, the defendant forcibly raped the 68-year-old woman. The defendant then used a survival knife to rape the woman a second time, causing great bodily injury. After raping the victim twice, the defendant then robbed the victim and fled the scene.”
The prosecution also noted that appellant had sustained seven convictions since his release from prison in 1994. Those included a 2001 conviction for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); a January 2007 conviction for possession of narcotics paraphernalia (Health & Saf. Code, § 11364); an August 2007 misdemeanor conviction for failure to register (§ 290, subd. (g)); a May 2008 misdemeanor conviction for hit and run (Veh. Code, § 20002, subd. (a)) and conviction for driving with a suspended license that same month (Veh. Code, § 14601.1, subd. (a)); an October 2008 conviction for possession of narcotics paraphernalia (Health & Saf. Code, § 11364); and the conviction of two counts of failure to register underlying this appeal (§ 290).
For a trial court to depart from the sentencing scheme of the Three Strikes law, the defendant must be deemed to be outside the scheme’s spirit in light of the particulars of his or her background, character, and prospects, and the nature and circumstances of his present felonies and strikes. A defendant who falls squarely within the law’s letter does not take himself or herself outside its spirit by the additional commission of a virtually interrupted series of nonviolent felonies and misdemeanors over a lengthy period. The fact a defendant who qualifies for sentencing under the Three Strikes law is also a habitual offender can hardly act as a mitigation so as to take him outside the spirit of that law. (People v. Strong (2001) 87 Cal.App.4th 328, 331-332.)
Appellant’s numerous offenses while on parole and probation, offenses which commenced in 2001 and continued through 2008, demonstrated he was the type of recidivist or “revolving door” career criminal for which the Three Strikes law was devised. (People v. Strong, supra, 87 Cal.App.4th at pp. 331-332.) Appellant points out a trial court abuses its discretion when factual findings critical to its decision find no support in the evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) While that proposition is true in the abstract, in the instant case the findings of the trial court were supported by the report of the probation officer. That report reflected numerous convictions subsequent to his 1987 offenses as well as multiple failures on probation and parole resulting in remand. The trial court’s ruling did not fall outside the bounds of reason under the applicable law and relevant facts and no abuse of discretion occurred in the denial of the request under section 1385.
2. Sentencing to State Prison
a. Appellant’s Contention on Appeal
Appellant contends on appeal the trial court failed to give due consideration to the specific circumstances of his case. He specifically argues:
“[T]he punishment of 25 years to life for a regulatory offense based on an omission to act is gratuitous, disproportionate, and extreme. There cannot fairly be said to be a significant rehabilititory [sic] interest for such an offense to justify a 25 year sentence. There was no behavior of a harmful, anti-social, or immoral nature that might be corrected or tempered by lengthy incarceration. As for deterrence of future failures to register, the current prosecution and the statutory sentence of three years is more than sufficient to meet any interest in deterrence. An interest in isolation has absolutely no proper bearing on the sentencing decision in this case. To the extent that the court was considering appellant’s potential for future violence, that was speculative, and completely unsupported by appellant’s record subsequent to the strike offenses.”
b. The Ruling of the Sentencing Court
At the December 3, 2009, sentencing hearing, the court heard the arguments of counsel, took the matter under submission, and denied appellant probation. In mitigation, the court noted that appellant had successfully completed parole in his 2001 case for possession of methamphetamine. In aggravation, the court noted his prior convictions as an adult were numerous, he had served two prior prison terms, he was on six grants of misdemeanor probation when the current offense was committed, his prior performance on deferred entry of judgment, misdemeanor probation, and state parole in the 1987 case was unsatisfactory because he continued to reoffend and violate the terms of parole. The court noted he was statutorily ineligible for felony probation because he had strike priors (§ 667, subd. (c)(2)). The court also noted that even if appellant were eligible, appellant was an unsuitable candidate for a grant of felony probation based upon his prior criminal record. The court concluded:
“And, important to this court, is the fact that he had a prior conviction for failing to register. And it seems that the pattern that he’s adopted since the year 2000 is basically not to obey laws. And the court is particularly concerned with the fact that it seems to be undisputable by the letters that I have reviewed and by argument, [that] he has a real drug problem, real addiction problem. That is the big fear the court has is that out there, some of these drugs, as we all know, can trigger violent behavior. He not only has the potential for violent behavior, but he is capable and has demonstrated violent behavior in the past.”
As noted above, the court adopted the recommendation of the probation officer and sentenced appellant to the term of 25 years to life.
c. Appellant’s Specific Contentions
On appeal, appellant attempts to parse the statements of the court at the sentencing hearing to establish reversible error. Appellant first acknowledges his California Department of Corrections (CDC) records show a parole hold on March 28, 1996, and a revocation of parole on April 12, 1996, but points out the record “does not illuminate the nature of the alleged violation.” He also notes the CDC record contains no reference to an alleged violation of parole on May 3, 1999, even though the report of the probation officer makes reference to such a violation. Appellant told the probation officer he was “a recovering addict” and said he had last used marijuana and “speed” in December 2008. He maintains there was no “nexus between appellant’s use of drugs and alcohol and either the current offense, or the likelihood of a violent or sexual re-offense.”
Appellant also challenges the trial court’s finding that he had a prior conviction for failing to register. Appellant acknowledges that he sustained a misdemeanor conviction for failure to register. However, he claims that conviction that arose when he left the State of California to attend the funeral of his grandfather in Oklahoma. According to defense counsel at trial, appellant believed the charge had been dropped and had not actually resulted in a conviction. On appeal, counsel notes the version of section 290 in effect at the time of that conviction required proof of presence in California at the time of the alleged violation (People v. Wallace (2009) 176 Cal.App.4th 1088, 1103.) Appellant maintains he would have had a defense to the charge if he was out of state.
Appellant further acknowledged eight misdemeanor offenses subsequent to his strike offenses but pointed out most of them were either drug-related or driving offenses and claimed “[t]hese offenses do not support the court’s conclusion that appellant had ‘adopted a pattern’ ‘not to obey laws.’ ” Appellant lastly contends the trial court engaged in speculation when it relied on two violations of parole as indicative of unsatisfactory prior performance on parole. Appellant notes the probation report only indicated that one of the alleged violations resulted in a return to prison and that the “cause” for a parole revocation may be non-criminal conduct such as the failure to abstain from alcohol (§ 3053.5).
d. Governing Law
Sentence choices that generally require a statement of a reason include imposing a prison sentence and thereby denying probation. (Cal. Rules of Court, rule 4.406(b)(2)). If the sentencing judge is required to give reasons for a sentence choice, the judge must state orally on the record, in simple language, the primary factor or factors that support the exercise of discretion. (Cal. Rules of Court, rule 4.406(a).) The Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike. An exception to this rule exists where the sentencing court concludes, for articulable reasons which can withstand scrutiny for abuse, the defendant should be treated as though he or she actually fell outside of the Three Strikes scheme. In reviewing such a ruling, the appellate court must consider “ ‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit.…’ ” (People v. Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Williams, supra, 176 Cal.4th at p. 161.)
In sum, the Three Strikes law not only establishes a sentencing norm, but it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. The Three Strikes law thus creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances, i.e., where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ. (People v. Carmony, supra, 33 Cal.4th at pp. 378-379.)
e. Analysis
Although appellant criticizes various statements by the trial court at sentencing, the court correctly recognized that appellant engaged in a violent felony in 1987, his performance on parole in that case was unsatisfactory, he sustained numerous convictions as an adult, he served two prior prison terms, and he was on six grants of misdemeanor probation when he failed to register in this case. The court expressly considered the nature of the offense, the age of the appellant, the absence of a weapon, injury, and threat, and also acknowledged appellant’s recent work history. Given the restrictive nature of the Three Strikes law, we cannot say the trial court abused its discretion by conforming to the sentencing norms of that law. The court considered his criminal record, prison service, history on parole, substance abuse, and work history and properly balanced them in concluding appellant fell within the spirit of the Three Strike law.
The trial court did not abuse its discretion in imposing the term of 25 years to life in state prison.
V. THE 25 YEARS TO LIFE SENTENCE DID NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT
Appellant contends “[a] sentence of 25-years-to-life for omitting to register at a new or second residence is cruel and unusual and disproportionate punishment in violation of the United States and California Constitutions – especially where the defendant had properly registered at the place he considered his residence and failed to register at a place where he was temporarily working.” !(AOB 49-59, ARB 8-11)!
Both the trial and the appellate court have the authority to determine whether a sentence results in cruel and unusual punishment. While the proper determination of this claim may be fact specific, it is a role of the appellate court to decide mixed questions of fact and law. Mixed questions are those in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the relevant legal standard. Under the separation of powers doctrine, the courts may not encroach lightly in matters normally left to the Legislature and must always be aware that one function of the legislative branch is to define crimes and describe punishments. The courts examine legislative acts to determine whether the punishment exceeds constitutional limits in individual cases. (People v. Meeks (2004) 123 Cal.App.4th 695, 707.)
Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. A tripartite test has been established to determine whether a penalty offends the prohibition against cruel or unusual punishment. First, courts examine the nature of the offense and the offender, with particular regard to the degree of danger both present to society. Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. In undertaking this three-part analysis, we consider the totality of the circumstances surrounding the commission of the offense. (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389 (Rhodes).)
Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalties is not an exact science. Rather, it is a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. In appropriate cases, some leeway for experimentation may also be permissible. The judiciary should not interfere in this process unless a statute prescribes a penalty out of all proportion to the offense, i.e., is so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment. Only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances, do the courts denounce it as unusual. (Rhodes, supra, 126 Cal.App.4th at pp. 1389-1390.)
“ ‘Our Supreme Court has emphasized the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, … [a] court should not lightly encroach on matters [that] are uniquely in the domain of the Legislature.… [T]he validity of enactments will not be questioned unless their unconstitutionality clearly, positively, and unmistakably appears.’ ” [Citation.]’ … ‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’ [Citations.]” (Rhodes, supra, 126 Cal.App.4th at p. 1390.)
In the instant case, the court’s indeterminate sentence was based upon section 667, subdivision (e)(2)(A), a component of the three strikes law. (See People v. Spears (1995) 40 Cal.App.4th 1683, 1685; People v. Hardy (1999) 73 Cal.App.4th 1429, 1433.) In People v. Cooper (1996) 43 Cal.App.4th 815, 825-828, this court held a 25-year-to-life sentence for a third strike criminal defendant does not constitute cruel or unusual punishment under the California Constitution. In Ewing v. California (2003) 538 U.S. 11, 30-31, the United States Supreme Court held a sentence of 25 years to life in prison imposed for the offense of felony grand theft under the Three Strikes law is not grossly disproportionate and therefore does not violate the Eighth Amendment prohibition on cruel and unusual punishments. In Lockyer v. Andrade (2003) 538 U.S. 63, the United States Supreme Court held “[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case” (id. at p. 77) and that two consecutive terms of 25 years to life for thefts of videotapes were not grossly disproportionate.
In the instant case, appellant admitted to Deputy Gagnon that he was evading an active warrant when he was placed under arrest. His criminal history included a violent assault and maiming of a rape victim with a knife. Upon conviction of three criminal counts arising from that violent incident, appellant violated parole. After discharge from parole, appellant sustained convictions for multiple drug-related and vehicular offenses as well as one misdemeanor conviction for failure to register as a sex offender (§ 290, subd. (g)(1)). Several of these subsequent offenses entailed violations of probation. Appellant suggests he could have been “readily located” despite his nonregistration because “[h]e was returning regularly to his registered address in Torrance, and his family all knew his whereabouts.” However, his mother told Deputy Gagnon “he was transient, homeless.” Appellant characterizes his violation of section 290 as “a mere regulatory offense.” However, the failure to register as a sex offender is not trivial. (In re Coley (2010) 187 Cal.App.4th 138, 145, review granted Aug. 4, 2010, S0185303.) The Supreme Court has emphasized: “Plainly, the Legislature perceives that sex offenders pose a ‘continuing threat to society’ [citation] and require constant vigilance. [Citation.]” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.)
The United States Supreme Court observed in Ewing v. California, supra, 538 U.S. 11:
“To be sure, Ewing’s sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California ‘was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.’ [Citation.] Ewing’s is not ‘the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ [Citations.] ” (Ewing v. California, supra, 538 U.S. at pp. 30-31.)
Similarly, appellant’s sentence in this case is justified by the state’s public-safety interest in incapacitating and deterring recidivist felons and is amply supported by his own long, serious criminal record. Appellant’s claim of cruel and unusual punishment under the United States and California Constitutions must be rejected.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Cornell, J.