Opinion
Super. Ct. No. 06F4968
NOT TO BE PUBLISHED
RAYE , J.
A jury rejected defendant Dennis Wayne Mize’s testimony that he continued to reside in Oregon after several witnesses testified he was living in California for over two months and convicted him of one count of failing to register as a sex offender within 10 days of coming into California. (Pen. Code, § 290, subd. (a)(1)(A).) The trial court found true the allegations defendant had suffered four prior strike convictions for sodomy in the first degree (Or. Rev. Stat. § 163.405), unlawful sexual penetration in the first degree (Or. Rev. Stat. § 163.411), sexual abuse in the first degree (Or. Rev. Stat. § 163.427), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). He was sentenced to state prison for 26 years to life.
Although the statute requires registration within 5 working days of coming into California, defendant was tried on the premise he had 10 working days to register. (See further discussion in part I, post, at pp. 6-7.)
On appeal, defendant asserts insufficiency of the evidence as well as instructional and evidentiary error. As to his sentence, he contends the trial court abused its discretion by failing to dismiss enough of his earlier strikes to foreclose a life term and insists such a term constitutes cruel and unusual punishment for a mere failure to register as a sex offender. We disagree and affirm.
FACTS
The pivotal factual question posed to the jury was whether defendant resided in California or Oregon. There was an abundance of evidence that he had moved to California for a period of time far in excess of the 10-day trigger to register as a sex offender. We provide a brief sketch of that evidence, cognizant that “[i]n assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
First, following his arrest, defendant himself provided his address as 6998 Highway 273 in Anderson and told his probation officer that he had resided in Shasta County for nine months. He gave the same address to a second probation officer a few days later and repeated that he had lived at that address for nine months. But he also told the second probation officer that he had lived in Shasta County for 20 years.
Second, his then girlfriend, Suzanne Rodriguez, testified that she moved with defendant to Shasta County at the end of April or beginning of May 2006. They lived with an elderly woman, Oleta Dobson. Because defendant had been Dobson’s son’s best friend before the son died, Dobson allowed defendant and Rodriguez to live in a converted garage unit in exchange for some odd jobs. Rodriguez further testified they remained at Dobson’s house from the end of April to June with the exception of a week when she left to go to Turlock and three or four days when defendant left to sell his Jeep. She admitted she drank heavily during the time they lived together at Dobson’s. On June 16, 2006, a no-contact order was issued on her behalf when she went to the emergency room following an incident with defendant.
Third, Dobson and her twin sister Ozella Mitchell, almost 70 years old, both testified that defendant lived at Dobson’s house on and off for a couple of months. At trial, both claimed faulty memories but acknowledged defendant had stayed at Dobson’s house. Dobson testified defendant stayed in her family room, which had been converted from a garage and had a sleeping area and bathroom. Dobson was annoyed that defendant had not kept up his end of the bargain and failed to get much work done for her. She disliked his girlfriend’s drinking. Nevertheless, because the unit had its own entrance, she did not know precisely when defendant or Rodriguez was there. She told an investigator for the district attorney’s office that defendant had lived with her for about three months.
Contrary to this evidence, defendant testified that he lived and worked in Oregon. He claimed he was in California sporadically from December 2005 through June 2006, but never for more than three consecutive days. When he was in Redding, he would stay with Dobson and had “free gratis” to come and go whenever he came through town. He explained that he had told the arresting officer and probation officer his address was 6998 Highway 273 because from his experience it was best to give a local address in order to get a favorable bail review or release on one’s own recognizance. It was the jury’s prerogative to reject defendant’s testimony given his propensity and motive to lie.
Although defense counsel asked defendant if he stayed with Dobson while in Redding, Dobson in fact lived in nearby Anderson.
It was undisputed that defendant failed to register in California and, for that matter after August 9, 2005, in Oregon either. He did not notify the authorities in Oregon that he was moving to California, nor did he register on his birthday in 2006 as he was required to do. There was ample evidence that he knew he was required to register.
His Oregon parole officer testified that she discussed with defendant the requirement that he must report a change of residence to the appropriate law enforcement agency within 10 days of the change in residence. This requirement was expressly set forth in the order of supervision conditions he signed on multiple occasions. A sex offender registration obligation notification form, signed by defendant on July 29, 2003, stated: “If you move out of state, you must register within 10 days in order to be relieved of your requirement to register in Oregon. You should also contact the appropriate agency in that state regarding their registration requirements.” On September 9, 2003, he signed another document that informed him: “Pursuant to federal law, you must also contact the appropriate agency in the state to which you have moved within ten (10) days of arriving in that state.” He completed forms containing this same information on January 22, 2004; April 29, 2004; and March 10, 2005.
In November 2004 defendant left Oregon and went to Washington. He was later punished for failing to notify Oregon authorities of his move and failing to register as a sex offender in Washington.
The prosecution introduced excerpts of letters defendant wrote to Rodriguez in spite of the no-contact order. He encouraged her to dodge subpoenas and lie on his behalf. Angry about her disclosures to the district attorney’s investigator, he wrote, “Would you like to know how many ways your conversation with the DA investigator fucked up my case?” He warned her he was going to tarnish her reputation at trial.
I
At the time defendant failed to register in 2006, Penal Code section 290 provided, in relevant part: “(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while residing in California, or while attending school or working in California, as described in subparagraph (G), 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 . . . 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. [¶] (B) If the person who is registering has more than one residence address at which he or she regularly resides, he or she shall register in accordance with subparagraph (A) in each of the jurisdictions in which he or she regularly resides, regardless of the number of days or nights spent there.”
All further statutory references are to the Penal Code unless otherwise indicated.
Preliminarily, we note that to ensure defendant was provided adequate due process, this case was tried on the premise that he had 10 working days, rather than the 5 working days provided by section 290, to register because the authorities in Oregon had explained to him that he had 10 days to register when coming into a new state. We also point out that although transient sex offenders are required to register under an alternative statutory scheme (§ 290, subd. (a)(1)(C)(i)), the prosecution did not charge defendant with failing to register as a transient but rather with the sole charge that he resided in California for 10 days and failed to register with California authorities.
Defendant insists the prosecution failed to prove that he established a residency in Dobson’s garage for 10 consecutive days. In his view, he was a mere transient in California, floating from Shasta County to Modesto to Turlock and back to Oregon. In the absence of proof beyond a reasonable doubt that he resided continuously at Dobson’s house for at least 10 consecutive days, a duty to register never arose. He implies he simply never abandoned his Oregon residency. His argument exposes a fundamental misunderstanding of the prosecution’s burden of proof and the limitations on the scope of appellate review.
Defendant has provided no authority, and we have found none, to support his proposition that he had no duty to register unless the prosecution could prove he was physically present in Shasta County for 10 consecutive days. Neither the statute nor the instructions embody such a requirement. Indeed, the jury was instructed the prosecution had the burden of proving each of the following elements: “1. The defendant was previously convicted of a felony sex offense for which the defendant is required to register; [¶] 2. The defendant resided in Shasta County, California; [¶] 3. The defendant actually knew he had a duty to register as a sex offender wherever he resided, within ten days of coming into the State of California; [¶] AND [¶] 4. The defendant willfully failed to register as a sex offender with the Sheriff of Shasta County within ten days of coming into that county.”
The Fourth District Court of Appeal rejected a nearly identical argument in People v. Poslof (2005) 126 Cal.App.4th 92 (Poslof). Poslof, a recidivist sex offender, signed a purchase agreement for a house in Twentynine Palms and was living in the home with his 16-year-old daughter. (Id. at p. 96.) Like defendant, Poslof asserted there was insufficient evidence that he had resided in the house for five consecutive days. The court responded: “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. Here, the five-day notice period was triggered upon defendant establishing an additional location or residence. When the five-day notice period was triggered in defendant’s case is a question of fact for the jury, which is not dependent upon whether he stayed at the residence five or more consecutive days.” (Poslof, at p. 102.)
We adopt the Fourth District’s reasoning and its further analysis of the purpose of the statute. “The purpose of section 290, of assuring that convicted sex offenders shall be readily available for police surveillance, would be defeated were an offender allowed to remain at one or more undisclosed locations on a regular basis simply because the offender limited his regular or weekly stay to less than five consecutive work days a week. To read into the registration statute such a contrived construction would render section 290, subdivision (a)(1), nonsensical, subvert the purpose of the statute, and make surplusage of the words ‘regularly resides’ contained in that provision. This case provides a graphic example of how a sex offender could easily evade section 290 registration requirements if we were to adopt the restricted meaning [advanced] by defendant.” (Poslof, supra, 126 Cal.App.4th at p. 103, fns. omitted.)
Defendant misconstrues the meaning of residency and the duty to register when coming into a new state. Residency simply does not mean, as defendant maintains, a continual presence in a location. Rather, residence “‘denotes any factual place of abode of some permanency, that is, more than a mere temporary sojourn [citation]. While a person can have in law only one domicile [citation], he may have several “residences” for different purposes [citation] . . . .’ [Citation.]” (People v. McCleod (1997) 55 Cal.App.4th 1205, 1217 (McCleod).) Despite the fluidity of the term, the court in McCleod expressly held that residence is not a technical term requiring special explanatory instructions. (Ibid.)
We turn then to the sufficiency of the evidence to support the jury’s finding that defendant resided in Shasta County and willfully failed to register within 10 days of coming into the State of California. The jury could have accepted defendant’s notion that his romp through California was a “mere temporary sojourn” and that he was a mere traveler from Oregon. But it did not and the evidence, as we cited above, was more than sufficient to support the contrary inference drawn by the jury.
Defendant’s ex-girlfriend testified they lived together in Shasta County from late April until he was arrested in June. Oleta Dobson told an investigator defendant resided in her home for three months. Defendant himself told the arresting police officer and the probation officer that he had lived at Dobson’s home for nine months. In sum, there was ample evidence that defendant had established a residence in Shasta.
Moreover, despite defendant’s testimony to the contrary, there was little, if any, evidence he continued to reside in Oregon. He failed to register in Oregon in April 2006 as he was required to do. He produced no evidence, other than his self-serving testimony, to prove he continued to live and work in Oregon. Of course, even if he had maintained an Oregon residence, once he established a second residence in California he was required to register in California as well as in Oregon. (Poslof, supra, 126 Cal.App.4th at p. 103.)
Given the deferential standard of review, we conclude there is more than substantial evidence in this record to support the jury’s finding that defendant had established residency in California and failed to register within 10 days. Once he established the residence in Shasta County, his short and sporadic visits to Turlock and Modesto did not mean he no longer resided in Shasta County and did not ameliorate his duty to register. People v. Balkin (2006) 145 Cal.App.4th 487 (Balkin) does not suggest otherwise.
In Balkin, the sole evidence of the defendant’s residency was a mailing address in Los Angeles County. Unlike the compelling testimony of several witnesses in this case that defendant resided in Shasta County for a substantial period of time exceeding 10 days, there was no evidence as to when Balkin “secured that address or moved into the city or county -- it could have been one day prior to his arrest or more than five days.” (Balkin, supra, 145 Cal.App.4th at pp. 492-493.) Thus, the court was forced to conclude there was insufficient evidence Balkin had been in Los Angeles for five working days prior to his arrest. (Ibid.) By contrast, the record here discloses compelling evidence that defendant had arrived in California several months before his arrest and his duty had arisen within 10 days of his arrival.
II
Defendant concedes he signed multiple forms that included the following admonition: “If you plan to move out of Oregon, you must report your prospective out-of-state address to your supervising official or an Oregon law enforcement agency. Pursuant to federal law, you must also contact the appropriate agency in the state to which you have moved within ten (10) days of arriving in that state.” He argues there was insufficient evidence to support the jury’s finding that he willfully failed to register because these instructions informed him of his duty to report a move to the Oregon authorities, not California authorities; they referred to federal, not California, law; and they instructed him to “contact” the appropriate agency, not to register in the new state. Thus, he parses the evidence in a manner rejected by the jury. We are not at liberty to superimpose defendant’s reading of the forms on the jury as long as a juror might have drawn reasonable inferences to the contrary.
Here the inference that defendant knew and understood his duty to register in other states was supported by the testimony of his Oregon parole officer. Under cross-examination she testified that, after explaining the contents of the forms defendant signed, she told him of his duty to register in other states. He therefore was informed both orally and in writing that if he moved to another state he was required to inform the authorities in the new state. Moreover, after failing to do so when he moved to Washington, he was cited and punished for the failure. The jury could thus reasonably infer that the oral and written admonitions, coupled with the consequences he suffered in Washington, provided defendant the knowledge of his duty to alert California authorities 10 days after he established residency in this state.
We do not accept defendant’s suggestion that the reference to a federal requirement to register did not provide him adequate notice under California law, nor do we accept the notion that the failure to cite the applicable sections of the California Penal Code deprived him of due process of law. The due process clause does not require correctional officers to cite to the registration requirements of all 50 states in order to apprise a sex offender of his obligation to register in each jurisdiction when he moves. Rather, the forms signed by defendant here adequately informed him of his ongoing duty to register in new states, if and when he left Oregon.
No one disputes the prosecution’s burden to prove that defendant’s failure to register was “willful,” that is, that he had actual knowledge of the duty to register. (People v. Barker (2004) 34 Cal.4th 345, 351; People v. Garcia (2001) 25 Cal.4th 744, 752.) Here we conclude that there was substantial evidence to support the jury’s finding that defendant willfully failed to register because he actually knew of his obligation to register in California and failed to do so.
III
Offering a slight twist on the residency arguments posed above, defendant contends the trial court failed to properly instruct the jury on the precise meaning of residency, including the requirement that a sex offender reside within the jurisdiction for consecutive days. He dismisses the court’s holding in McCleod, supra, 55 Cal.App.4th at page 1219, wherein the court expressly rejected the defendant’s assertion that residency must be defined for a jury. We accept the McCleod holding and have otherwise rejected defendant’s insistence that a sex offender must be physically present for 10 consecutive days (or 5 if applicable) to establish residency and thereby trigger his duty to register pursuant to section 290, subdivision (a)(1)(A).
IV
Defendant next objects to the court’s admission of evidence that he also failed to register when he moved to Washington. He contends the court abused its discretion by admitting evidence of his Oregon parole violation by absconding to Washington. We disagree. The court carefully balanced the danger of poisoning the jury with evidence of the parole violation against the probative value of the knowledge the jury could infer defendant gained from the episode.
For example, the court guided the prosecutor to avoid any reference to a parole violation. The court stated: “Why don’t you make sure that you do your best to phrase it that way, and then when we get to that point, counsel, I’ll -- because it isn’t really important to the evidence, I don’t think, that -- the fact that the defendant absconded. That’s really an independent offense or violation. And I’d rather not emphasize or deal with that, so much as the fact that he left, was told that he had to register in another state, was advised fully of that rule, got a consequence for failing to do it. Therefore, it’s all evidence of knowledge and a reason to remember, and as opposed to knowledge of an independent parole violation basically, and continuing. Because that kind of just paints the defendant with the aura of a rule violator. That’s not appropriate.”
The court further clarified the relevance of the evidence. “Well, seems to me that what’s really important in that evidence is related to the issue of knowledge, and whatever the laws of the State of Washington are, if the defendant was told that if he left the State of Oregon and entered another state, there were registration requirements that he had to meet, and that failure to meet those could result, not only in a violation of the law, but in punishment in Oregon for failing to properly register in the other state, and failing to get permission. Then, to me, that’s certainly circumstantial evidence as well as direct evidence that he knew, and based on the circumstances that he had reason to remember, because there was a consequence.”
It is a basic principle of the law of evidence that although prior bad acts are inadmissible to prove a propensity or predisposition to commit the charged crime (Evid. Code, § 1101, subd. (a)), they are admissible if relevant to prove another material fact, such as motive, intent, plan, knowledge, identity, or absence of mistake or accident (Evid. Code, § 1101, subd. (b)). Defendant argues the evidence of his travails in Washington “is completely useless, having no pertinence at all to the problem at hand.” He insists that notice of a duty to register in Washington gave him absolutely no notice of a duty to register in California and that “logically” it gave him only notice that he would be punished in Oregon for violation of Oregon parole laws if he left Oregon without giving notice and without getting permission.
Defendant’s arguments suffer from the same fatal flaw. They assume the jury was compelled to draw the same inferences he does. Defendant certainly had the right to argue that what happened in Washington bore no similarity to what happened in California and that he was punished for a parole violation divorced from a duty to register. But the jury again was justified in drawing the inference suggested by the trial court, that is, that he had notice of an obligation to register in other states from his experience when he left Oregon for Washington. We cannot say the court abused its discretion by allowing circumstantial evidence that he knew he had a duty to register in part because he learned that lesson as a result of his failure to register in Washington.
V
Although he was convicted of carrying a loaded firearm as far back as 1978; assault with a firearm in 1984; vehicular homicide of a 7-year-old child in 1988; a probation violation in 1996; sexual abuse, unlawful sexual penetration, and sodomy, all involving his girlfriend’s 13-year-old daughter, in 1997; and a parole violation a year after he was released from prison in 2003, defendant contends the trial court abused its discretion by refusing to dismiss enough strikes to preclude the imposition of a 25-years-to-life term under the “three strikes” law. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.) It is defendant’s burden to show the trial court’s sentencing decision was irrational or arbitrary. “‘“In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) We cannot substitute our judgment for that of the trial court. (Id. at p. 377.)
Nevertheless, the interests of justice temper the trial court’s exercise of discretion. In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court explained that, in ruling on a motion to strike a prior conviction under the three strikes law, the trial 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, 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.” (Id. at p. 161.)
Defendant maintains he is such a candidate, outside the spirit of the three strikes law, because he did not physically injure his victims, with the exception of killing a 7 year old, and he did not use violence to molest the 13 year old. He contends his convictions are too old to merit attention and he emphasizes that his current offense was both passive and nonviolent.
The trial court carefully considered defendant’s entire criminal history and rejected his argument that he did not fall within the spirit of the three strikes law. We can find no abuse of discretion in the following evaluation of defendant’s background, character, and prospects for reoffending or of the court’s ultimate conclusion that defendant falls squarely within the purpose and spirit of the three strikes law. The court explained:
“I’m going to decline the invitation to strike any strikes. This is not a case where striking one strike would do any good. There are multiple strikes here that were found to be true. And I’ve taken a hard look at the nature of the current offense, which obviously by itself wouldn’t justify a life sentence, but I’ve also looked at the nature of his priors, which if you look at all of them in total they were both violent, dangerous, and there are multiple priors.
“I’ve considered the general objectives of sentencing, including deterrence and even-handed sentencing, I’ve looked at the prospects and the character of the defendant, and I think his prospects, unfortunately, are dismal. His prospects for success on probation or after release -- after a shorter prison term I think are dismal. His history demonstrates that he doesn’t perform or comply on parole or probation. He’s had numerous opportunities; he’s been sent the message that not complying results in more prison time, and yet he continues to fail to comply. I think he’s a danger to society, and so my view is that when I look at all the aspects that Romero and other cases suggest I should, my view is that he is completely within the Three Strikes scheme, and there’s no way for me to construct with any intellectual integrity that he is outside the scheme. And is a recidivist criminal.
“And you are, sir, somebody who I think if you were not in prison, there’s every likelihood to think you’re going to reoffend and without too much time passing. And you -- you have demonstrated that by your history, and I think it’s incumbent upon me to incarcerate you pursuant to the law as somebody who’s within the Three Strikes scheme. So the invitation is declined.”
VI
In a supplemental brief, defendant contends his lengthy sentence for failing to register in violation of section 290 constitutes cruel and unusual punishment. Not so.
Defendant was punished for his 30-year history as a recidivist in the criminal justice system. The three strikes law directed at recidivists like defendant has withstood similar challenges as a violation of the Eighth Amendment ban on cruel and unusual punishment. (Parke v. Raley (1992) 506 U.S. 20, 27 [121 L.Ed.2d 391, 402]; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1329.) Defendant’s lengthy criminal record, including assault, sexual abuse, unlawful sexual penetration, sodomy, and parole violations, makes him a career recidivist not amenable to rehabilitation and within both the letter and the spirit of the three strikes law.
“In light of defendant’s individual circumstances and criminal history, the term imposed is not grossly disproportionate to the current offense and does not constitute cruel and unusual punishment in violation of the Eighth Amendment. [Citations.] Nor is the punishment ‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] Defendant’s [26]-years-to-life Three Strikes sentence does not qualify as cruel and unusual punishment due to his criminal history as a recidivist and child sex offender whom the jury found knowingly failed to register in violation of section 290.” (Poslof, supra, 126 Cal.App.4th at p. 109.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS , Acting P.J., DAVIS , J.