Opinion
G061032
12-15-2022
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ANTON PISANO, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher B. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 21WF0411, Scott A. Steiner, Judge. Affirmed in part, reversed in part, and remanded.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher B. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
William Anton Pisano appeals from a judgment after a jury convicted him of three counts of failing to register as a sex offender. Pisano argues insufficient evidence supports his convictions, one conviction is a lesser included offense of another conviction, the trial court erred in instructing the jury, and the court's minutes and abstract of judgment must be corrected. As we explain below, the trial court prejudicially erred in instructing the jury on one offense and the court's minutes and the abstract of judgment must be corrected. His other contentions have no merit. We affirm in part, reverse in part, and remand.
FACTS
Pisano suffered a New York conviction for "possessing a sexual performance by a child" that required him to register as a sex offender for life. Upon moving to California, Pisano registered with the San Bernardino Police Department by completing an 8047 form.
The California equivalent is possession of child pornography (Pen. Code, § 311.11, subd. (a)).
An 8047 form is used to initially register a sex offender.
On June 15, 2017, Pisano registered and completed an address change to the City of Lake Elsinore at the Riverside County Sheriff's Department Lake Elsinore station. He registered there again on July 26, 2017, October 3, 2017, and January 2, 2018, and completed an 8102 form. Officers explained the registration requirements to Pisano, including that transients must register every 30 days. Pisano initialed the written admonition he had to register within five days of changing his residence and within five days of his birthday.
An 8102 form is used to register on a birthday, to change an address, or to deregister and register at a different location.
On January 2, 2018, Pisano went to the Lake Elsinore station to complete an 8102 form to deregister. Pisano told Officer Jason Brown he was moving to Orange County to live as a transient in Garden Grove or Huntington Beach. Pisano did not register after January 2, 2018, when he arrived in Orange County or on his September 9th birthday.
At 2:34 a.m. one December 2020 morning, Huntington Beach Police Officer Michael Moso searched for Pisano because he had not registered. Moso found his pickup truck with a camper shell parked on a lightly traveled dead-end residential street adjacent to the Bolsa Chica wetlands. There was a cinderblock wall on each side of the truck that faced the wetlands.
The cab was empty so Moso knocked on the camper shell. There was no response. Several minutes passed. Moso shined his flashlight into the camper shell and saw movement. It appeared to Moso that Pisano was waking up. Pisano got out of the truck and Moso arrested him. There was a mattress, blankets, stove, refrigerator, and clothes in the back of the truck.
An information charged Pisano with the following: transient failure to register annually within five days of his birthdate (Pen. Code, §§ 290.011, subd. (c),290.018, subd. (b), count 1), failure to comply with annual registration requirements (§§ 290.012, subd. (a), 290.018, subd. (b), count 2), and failure to notify law enforcement within five days of a change of address (§§ 290.013, subd. (a), 290.018, subd. (b), count 3).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, Brown testified concerning the sex offender registration rules and procedures. He had registered sex offenders intermittently for 25 years and "continually" for the previous eight years. Brown and Moso testified they did not know where Pisano lived in December 2020. Brown agreed department records indicated Pisano said he may also move to Los Angeles County.
The jury convicted Pisano of the three offenses. The trial court sentenced Pisano to the low term of 16 months on count 1. The court did not address counts 2 and 3. The court concluded he was unable to pay any fines and fees.
The trial court's minutes indicate it stayed the sentences on counts 2 and 3 and imposed various fines and fees. The abstract of judgment does not mention counts 2 and 3, but it too includes the fines and fees.
DISCUSSION
I. Sufficiency of the Evidence
"'"In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-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.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] '[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.] We do not reweigh evidence or reevaluate a witness's credibility."' [Citation.]" (People v. Ramirez (2022) 13 Cal.5th 997, 1117-1118 (Ramirez))
There is a problem with the jury instruction on count 3. Pisano did not raise this issue. But we invited the parties to submit supplemental letter briefs addressing it. We discuss it below with Pisano's other instructional claims.
1. Huntington Beach
Pisano argues there was insufficient evidence he resided in or spent significant time in Huntington Beach. We disagree.
A convicted sex offender must register in any city or county in which he is domiciled or temporarily resides regardless of the number of days or nights spent there or whether they have an address or formal place of residence. (People v. Williams (2009) 171 Cal.App.4th 1667, 1672-1673 & fn. 2.) Counts 1 and 2 required the prosecution to prove Pisano resided as a transient in Huntington Beach. (§§ 290.011, subd. (a), 290.012, subd. (a), 290, subd. (b).) Residence means more than passing through or presence for a limited visit. (People v. McCleod (1997) 55 Cal.App.4th 1205, 1218-1219.)
Here, there was sufficient evidence Pisano was living as a transient in Huntington Beach and was not simply passing through. In January 2018, Pisano told the Riverside County officers that he was moving to Orange County to live as a transient in Huntington Beach or Garden Grove. To be sure, some time passed between then and when he was arrested. But true to his word, Pisano was found one early morning in Huntington Beach. At around 2:00 a.m., Moso found Pisano's truck parked in Huntington Beach. The time of day and the delay between when Moso knocked on the camper shell and his observing movement reasonably supports the conclusion Pisano was sleeping. Additionally, the mattress, stove, refrigerator, and clothes in the back of his truck were indicia his truck was his residence. This evidence indisputably leads to the conclusion Pisano was living in his truck in Huntington Beach.
Pisano cites to other evidence in the record that undermines the conclusion he lived in Huntington Beach. We do not reweigh or reinterpret the evidence but only determine whether there was sufficient evidence to support the trier of fact's conclusion. (Ramirez, supra, 13 Cal.5th at pp. 1117-1118.) Pisano also claims he may have briefly parked before passing through. The record belies this conclusion. Moso found him in the early morning hours asleep parked on a lightly traveled dead-end residential street near the wetlands. The above evidence established Pisano considered Huntington Beach his home.
Finally, Pisano's reliance on People v. Armas (2011) 191 Cal.App.4th 1173 (Armas), is misplaced. In that case, the court reversed defendant's convictions for failure to register because there was no evidence he failed to register with the city police department or was required to register with the county sheriff. (Id. at pp. 1183-1184.) Here, there was evidence Pisano did not register anywhere between the time he deregistered in Riverside County in January 2018 and was found in Huntington Beach in December 2020. And there was substantial evidence he was living as a transient in Huntington Beach at the time of his arrest to support his convictions for counts 1 and 2.
2. Knowledge Requirement
Pisano contends there was insufficient evidence he knew "pulling to the side of the road" required him to register in Huntington Beach. Not so.
"[A] violation of section 290 requires actual knowledge of the duty to register. 'A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement.' [Citation.]" (People v. Sorden (2005) 36 Cal.4th 65, 71.) "A jury may infer actual knowledge from notice and other circumstantial evidence. [Citation.]" (People v. Aragon (2012) 207 Cal.App.4th 504, 511 (Aragon))
Here, there was sufficient circumstantial evidence from which the jury could reasonably conclude Pisano knew "pulling to the side of the road" constituted transient residency requiring him to register in Huntington Beach. There is no dispute the evidence demonstrated the Riverside County officers advised Pisano of his lifetime registration requirements and had him complete the required forms on multiple occasions. By completing these forms, Pisano acknowledged he had to register annually within five days of his birthday in any jurisdiction in which he was residing, register every 30 days in any jurisdiction in which he is physically present or regularly residing as a transient, and inform law enforcement when he moved to a new city or county.
Additionally, evidence of Pisano's registration history helps to establish the knowledge requirement. Pisano registered multiple times in Riverside County. In January 2018, he deregistered in Riverside County, demonstrating he understood that moving jurisdictions required him to register elsewhere. When he deregistered, he told Riverside County officers that he was moving to Garden Grove or Huntington Beach to live as a transient. His written acknowledgements and registration history was sufficient evidence Pisano knew he had to register wherever and however he resided.
Pisano's reliance on Aragon, supra, 207 Cal.App.4th 504, is misplaced. In that case, defendant lived in a travel trailer parked in front of his brother's house and was convicted of failing to register the trailer as his residence. (Id. at pp. 508-510.) The court reversed concluding there was no "common understanding that living on the street in a travel trailer is a residence," and none of the forms and advisements defendant signed provided him notice his living arrangement constituted a residence. (Id. at pp. 510-511.) Here, Pisano's acknowledgement he had to register as a transient and his stated intent to live as a transient demonstrated he knew living in his truck on the side of the road triggered his obligation to register where he resided as a transient. Thus, the record includes sufficient circumstantial evidence to demonstrate the knowledge requirement.
B. Count 1
Relying on Aragon, supra, 207 Cal.App.4th 504, and an isolated statutory phrase, Pisano asserts he was not a transient because a pickup truck with a camper shell qualifies as a residence. Not in this case.
Section 290.011, subdivision (c), requires a transient to register annually withing five days of his birthday. A transient is defined as a person without a residence. (§ 290.011, subd. (g).) That same subdivision defines "'[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, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." (Ibid, italics added.)
In Aragon, supra, 207 Cal.App.4th at page 508, defendant who was to be released from prison and had to register as a sex offender indicated he could be transient. Defendant's brother invited defendant to park his travel trailer in front of his home. (Ibid.) The brother allowed defendant to connect to his utilities. (Ibid.) As relevant here, the Aragon court concluded that under these circumstances the travel trailer was a residence as statutorily defined. (Id. at pp. 510-511.)
Here, Pisano's pickup truck with a camper shell was not a residence as statutorily defined. Although his vehicle was parked in a residential neighborhood and had the makings of a residence, it did not have an address and was not connected to or associated with any home or other permanent structure which can be located by a street address. The closest residences were separated from the truck by cinder block walls, and his truck was not connected to, associated with, or adjacent to any home or other structure with an identifiable street address. Pisano states he was not ever asked if he was connected to an address. Again, our role is to determine whether there was sufficient evidence to support the judgment and not to focus on evidence that was lacking. Therefore, Pisano's pickup truck with a camper shell did not qualify as a residence pursuant to section 290.011, subdivision (g).
II. Lesser Included Offense
Pisano argues count 2 was a lesser included offense of count 1. Again, we disagree.
Generally, a person may be convicted of but not punished for more than one crime arising out of the same act or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226.) But a person may not suffer multiple convictions based on necessarily included offenses. (Id. at p. 1227.) "In deciding whether multiple conviction is proper, a court should consider only the statutory elements." (Id. at p. 1229 [accusatory pleading test not applicable where charged offenses].)
Count 1 charged Pisano with violating section 290.011, subdivision (c). It states the following: "Beginning on his or her first birthday following registration, a transient shall register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subdivision (a). A transient shall register in whichever jurisdiction he or she is physically present on that date."
Subdivision (a) of section 290.011 states the following: "He or she shall register, or reregister if the person has previously registered, within five working days from release from incarceration, placement or commitment, or release on probation, pursuant to subdivision (b) of Section 290, except that if the person previously registered as a transient less than 30 days from the date of his or her release from incarceration, he or she does not need to reregister as a transient until his or her next required 30-day update of registration. If a transient convicted in another jurisdiction enters the state, he or she shall register within five working days of coming into California with the chief of police of the city in which he or she is present or the sheriff of the county if he or she is present in an unincorporated area or city that has no police department. If a transient is not physically present in any one jurisdiction for five consecutive working days, he or she shall register in the jurisdiction in which he or she is physically present on the fifth working day following release, pursuant to subdivision (b) of Section 290. Beginning on or before the 30th day following initial registration upon release, a transient shall reregister no less than once every 30 days thereafter. A transient shall register with the chief of police of the city in which he or she is physically present within that 30-day period, or the sheriff of the county if he or she is physically present 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 physically present upon the campus or in any of its facilities. A transient shall reregister no less than once every 30 days regardless of the length of time he or she has been physically present in the particular jurisdiction in which he or she reregisters. If a transient fails to reregister within any 30-day period, he or she may be prosecuted in any jurisdiction in which he or she is physically present." Section 290, subdivision (b), states the following: "Every person described in subdivision (c), for the period specified in subdivision (d) while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall register with the chief of police of the city in which the person is residing, or the sheriff of the county if the person 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 the person is residing upon the campus or in any of its facilities, within five working days of coming into, or changing the person's residence within, any city, county, or city and county, or campus in which the person temporarily resides, and shall register thereafter in accordance with the Act, unless the duty to register is terminated pursuant to Section 290.5 or as otherwise provided by law."
Count 2 charged Pisano with violating section 290.012, subdivision (a). It states the following: "Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subdivision (b) of Section 290."
Under the statutory elements of each of the crimes, a violation of section 290.012, subdivision (a), is not a lesser included offense of section 290.011, subdivision (c). One can violate section 290.011, subdivision (c), without violating section 290.012, subdivision (a). For example, a transient sex offender who either on the fifth day following his birthday or at the 30-day mark following his last registration fails to register with a jurisdiction in which he is physically present but does not reside would be guilty of violating section 290.011, subdivision (c), but not of violating section 290.012, subdivision (a). While the person might be physically present in the jurisdiction, they do not reside in the jurisdiction and thus would not be required to register there. While we agree with Pisano the jury instructions on counts 1 and 2 were virtually identical, based on the statutory elements of the offenses, section 290.012, subdivision (a), is not a lesser included offense of section 290.011, subdivision (c).
III. Jury Instructions
A. CALCRIM No. 1170-Count 3
Pisano contends the trial court erred in instructing the jury on count 3. The Attorney General concedes there was prejudicial instructional error. We agree.
As we state above, Pisano did not raise this issue. We invited the parties to submit supplemental letter briefs addressing it, which they did.
"'No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' [Citation.] A trial court has a sua sponte duty to correctly instruct the jury on all elements of any charged offenses. [Citation.] . . . [Citation.] We review claims that a trial court has misinstructed a jury de novo." (People v. Sta Ana (2021) 73 Cal.App.5th 44, 60.)
Count 3 charged Pisano with violating section 290.013, subdivision (a). It states the following: "A 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." (Italics added.) "Under this provision, whenever a person required to register changes addresses, he or she must notify the last registering agency of the move within five working days." (People v. Villegas (2012) 205 Cal.App.4th 642, 647, italics added; People v. Annin (2004) 117 Cal.App.4th 591, 599 [purpose of requirement registrant must notify the "authority last registered" to prevent registrant from attempting to disappear]; People v. Davis (2002) 102 Cal.App.4th 377, 385-386 [conviction reversed where defendant not advised he was required to register "when he moved out of a city"].)
As to count 3, the trial court instructed the jury with CALCRIM No. 1170, as follows: "[T]he People must prove that: . . . [¶] 1. The defendant was previously convicted of a violation of New York Penal Law 263.16 00 Possessing A Sexual Performance By A Child. [¶] 2. The defendant resided in Huntington Beach California, a city in Orange County. [¶] 3. The defendant actually knew he had a duty under . . . section 290 to register as a sex offender and he had to register within five working days of changing his residence address. [¶] AND [¶] 4. The defendant willfully failed to register as a sex offender with the police chief of that city within five working days of coming into that city. [¶] Someone commits an act willfully when he or she does it willingly or on purpose." (First and second italics added.)
Section 290.013, subdivision (a), required Pisano to notify the Riverside County Sheriff's Department within five days of moving. (Villegas, supra, 205 Cal.App.4th at p. 647.) However, CALCRIM No. 1170 stated he resided in Huntington Beach and he had a duty to notify the Huntington Beach Police Chief of his move. The instruction was incorrect as to count 3.
And the record includes evidence from which one could reasonably conclude Pisano complied with section 290.013, subdivision (a). As the Attorney General notes, on January 2, 2018, Pisano notified the Riverside County officers that he was deregistering his address in Riverside County and was moving to Orange County to live as a transient in Huntington Beach or Garden Grove. Based on the incorrect instruction and the evidence at trial, we cannot conclude beyond a reasonable doubt the instructional error was harmless. (People v. Hendrix (2022) 13 Cal.5th 933, 942 [misinstruction of jury on element of offense subject to review pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman)].) We accept the Attorney General's concession and reverse Pisano's conviction on count 3.
B. CALCRIM No. 225-Circumstantial Evidence: Intent or Mental State
Pisano contends the trial court erred by failing to instruct the jury sua sponte with CALCRIM No. 225. Pisano did not request that instruction, and the court instructed the jury with its more inclusive counterpart.
1. Background
When discussing jury instructions, the trial court stated it would instruct the jury with inter alia CALCRIM Nos. 223 and 224. Neither party objected or requested any additional instructions. During closing argument, Pisano's counsel showed a PowerPoint slide with the language from CALCRIM No. 224 but labeled CALCRIM No. 225. At a sidebar conference a little later, the court confirmed both parties requested CALCRIM No. 224. The court instructed the jury with that instruction.
The trial court instructed the jury with CALCRIM No. 224 as follows: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Later, the trial court explained that at the conclusion of closing argument it asked counsel to approach because Pisano's counsel's PowerPoint slide was labeled CALCRIM No. 225 but the language was from CALCRIM No. 224. The court stated the following: "But I just wanted to make sure that [Pisano's counsel] wasn't asking the court to give [CALCRIM No.] 225. I would have if you wanted me to, but you elected to stick with [CALCRIM No.] 224." Pisano's counsel agreed.
2. Law and Analysis
In a criminal case, in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Parker (2022) 13 Cal.5th 1, 67-68.) When a defendant's intent or mental state is the only element of the offense that rests substantially on circumstantial evidence, then CALCRIM No. 225 should be used; if other elements of the offense rest substantially on circumstantial evidence, then CALCRIM No. 224 should be given. (People v. Hughes (2002) 27 Cal.4th 287, 347.) Our review is de novo. (Parker, supra, 13 Cal.5th at p. 68.)
Generally, a defendant forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if he or she fails to object in the trial court. (People v. Lucas (2014) 60 Cal.4th 153, 290-291 & fn. 51, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) CALCRIM No. 224 is a correct statement of the law regarding how a jury is to evaluate and consider circumstantial evidence. (People v. Livingston (2012) 53 Cal.4th 1145, 1166.) Here, Pisano raised no objection to CALCRIM No. 224. Indeed, he agreed to it and cannot now complain about it. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [doctrine of invited error prohibits accused from claim error on appeal when he intentionally caused the error].)
"CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1172 (Samaniego)) "CALCRIM No. 225 is to be used in place of CALCRIM No. 224 'when the defendant's specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.'" (Id. at p. 1171.)
Here, the trial court properly instructed the jury with CALCRIM No. 224. Pisano's mental state was not the only element that substantially involved circumstantial evidence. The prosecution also offered circumstantial evidence to establish he resided in Huntington Beach as a transient. CALCRIM No. 224 was proper because circumstantial evidence was used for both actus reas and mens rea elements. Pisano's reliance on People v. Yrigoyen (1955) 45 Cal.2d 46, 49-50, is misplaced because in that case the trial court did not give any instructions on evaluating circumstantial evidence.
In any event, assuming for purposes of argument the trial court did err, Pisano was not prejudiced because any error was harmless under either People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), or the more stringent harmless beyond a reasonable doubt test in Chapman, supra, 386 U.S. 18. Because the trial court provided the more inclusive instruction under CALCRIM No. 224 covering all circumstantial evidence, its failure to additionally provide CALCRIM No. 225 covering intent or mental state was not prejudicial error. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142, overruled on other grounds in People v. Leon (2020) 8 Cal.5th 831, 848; Samaniego, supra, 172 Cal.App.4th at p. 1172.)
C. CALCRIM No. 332-Expert Witness Testimony
Pisano asserts the trial court prejudicially erred by failing to instruct the jury sua sponte with CALCRIM No. 332 because Brown testified as an expert on sex offender registration. We agree the court erred but conclude Pisano was not prejudiced.
Witness testimony is considered admissible expert opinion evidence if it is based on "special knowledge, skill, experience, training, or education" and is "related to a subject that is sufficiently beyond common experience [and] would assist the trier of fact." (Evid. Code, §§ 720, subd. (a), 801, subd. (a); People v. Catlin (2001) 26 Cal.4th 81, 131.) A trial court has a duty to instruct the jury sua sponte with CALCRIM No. 332 when expert testimony is presented at trial. (§ 1127b; People v. Reeder (1976) 65 Cal.App.3d 235, 241 (Reeder))
CALCRIM No. 332 provides as follows: "A witness was allowed to testify as an expert and to give an opinion. You must consider the opinion, but you are not required to accept it as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. [¶] You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
It is unclear from the record whether the prosecution offered Brown as an expert witness concerning sex offender registration. Nevertheless, he testified at length about the rules, procedures, forms, and databases. Brown had registered sex offenders for 25 years and consistently for the previous eight years before trial. Whether the prosecution offered him as an expert, he clearly had specialized knowledge and experience that was beyond common experience. Thus, the trial court erred when it failed to instruct the jury sua sponte with CALCRIM No. 332. Although the trial court erred, Pisano was not prejudiced.
We assess the trial court's failure to give CALCRIM No. 332 under the Watson standard. (Reeder, supra, 65 Cal.App.3d at pp. 241, 243.) The test is whether it is reasonably probable the defendant would have received a more favorable result absent the error. (Id. at p. 243.) In light of the trial court's other instructions, it was not reasonably probable Pisano would have received a more favorable result had the court instructed the jury with CALCRIM No. 332. (People v. Lynch (1971) 14 Cal.App.3d 602, 609-610 [failure to instruct on expert testimony harmless based on other instructions].)
Although the trial court did not give CALCRIM No. 332, it instructed the jury on how to evaluate lay opinion testimony under CALCRIM No. 333. CALCRIM No. 332 instructs the jury to consider "the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion." CALCRIM No. 333 instructed the jury to consider "the extent of the witness's opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. . . . You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence." The main difference between CALCRIM Nos. 332 and 333 is that the former directs the jury to consider the expert's formal background. It is not reasonably probable jurors would have reached a more favorable verdict if they had been instructed to consider Brown's formal background because it was largely irrelevant to whether Pisano was living as a transient in Huntington Beach.
Additionally, the trial court instructed the jury with CALCRIM No. 226 that, "[y]ou alone must judge the credibility or believability of the witnesses," based on "your common sense and experience" and "may believe all, part, or none of any witness's testimony." The court also gave CALCRIM No. 200, which informed jurors that they were the exclusive judges of the facts and that it was "up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial."
Together, these instructions substantially covered all of the matters required by section 1127b and CALCRIM No. 332 and told the jury how to evaluate Brown's testimony. "We presume the jury understood and followed [the] instruction[s]." (People v. Silveria and Travis (2020) 10 Cal.5th 195, 272.)
Pisano's reliance on People v. Ruiz (1970) 11 Cal.App.3d 852, is misplaced. In that case, defendant asserted an insanity defense and offered expert opinion testimony by two psychiatrists that he was legally insane at the time of his offenses. (Id. at pp. 861-863.) The court held the failure to instruct on how to consider the expert opinion testimony on defendant's insanity defense was prejudicial error because the jury's verdict showed the expert testimony was integral to his defense. (Id. at p. 865.)
Here, by contrast, Pisano's defense the prosecution failed to meet its burden of proof did not rest on Brown's purported expert opinions, which Pisano did not challenge. The jury's determination whether Pisano resided in Huntington Beach as a transient was based on Brown's lay testimony Pisano stated he intended to live as a transient and Moso's testimony concerning the circumstances of his encounter with Pisano. Ruiz is inapposite. On this record, failing to give CALCRIM No. 332 instruction was harmless.
IV. Fines and Fees
Pisano asserts, and the Attorney General agrees, the trial court's minutes and the abstract of judgment erroneously include fines and fees. We accept the Attorney General's concession.
The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment. (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) "'[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts.' [Citation.]" (People v. Baker (2021) 10 Cal.5th 1044, 1109; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
At the sentencing hearing, the trial court concluded Pisano was unable to pay fines and fees. However, the court's minutes and abstract of judgment indicate the court imposed the following: the $300 restitution fine (§ 1202.4), a $300 suspended parole revocation fine (§ 1202.45), three $40 court operations assessments (§ 1465.8), and three $30 court facilities assessments (Gov. Code, § 70373). The minutes and abstract are incorrect regarding these fines and fees, and we order them corrected.
DISPOSITION
We reverse Pisano's conviction on count 3. In all other respects, the judgment is affirmed. The clerk of the superior court is ordered to prepare corrected court minutes and an abstract of judgment and forward a copy of the abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: MOORE, J., MARKS, J. [*]
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.