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April 21, 2003


The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge Introduction


This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Michael Apodaca. For the reasons discussed below, the court will deny the petition on the merits.


A. The Crime

The parties stipulated that Apodaca had a prior conviction requiring that he register as a sex offender and that he received and signed a standard form upon his release from prison about his registration duty. The form he signed upon his release from prison in October 1986 stated:

I am registering in compliance with 290 P.C. and/or 457.1 P.C. and/or 11590 H & S. I understand my requirements as stated in the appropriate Code sections. I further understand that registering pursuant to section 290 P.C., my requirement to register is lifetime and that I must register within 14 days of moving into a city or a county of a city/county.
Respondent's Memo. of Points And Authorities In Support of Answer, p. 2 (quoting People's Exh.2.)

After serving a separate prison term in Ohio, Apodaca was released from prison in Ohio on April 18, 1997. Upon his release, he was informed of his duty to register as a sex offender under Ohio law. He registered in Ohio. In July 1997, Apodaca came to California. He stayed at his mother's house in Oakland for a couple of nights, then applied to move into a homeless shelter in San Jose. His mother reminded him of his obligation to register and he responded that he would do so as soon as he had a permanent address. Apodaca stayed at the shelter in San Jose for 2-3 days, and then moved into another homeless shelter in San Jose, where he stayed for several weeks. And he stayed with his daughter in Sunnyvale "briefly" while saving enough money to rent his own place.

In August 1997, Apodaca rented a room from Czeenida Fras at 1634 Honeysuckle Drive in San Jose. He moved in furniture, a television, and clothing. He paid monthly rent on a regular basis. Ms. Fras saw him there nearly every day. He stayed there during the day, ate his meals at the residence, and slept in his room. Apodaca's daughter visited him there and called him there. On July 30, 1997, Apodaca applied to the Department of Motor Vehicles for a driver's license and listed his address as 1634 Honeysuckle Drive.

Apodaca was stopped by a police officer for a traffic stop on November 22, 1997. When the officer discovered there was a warrant for his failure to register, the officer arrested Apodaca. The officer informed him of his obligation to register under state law even if he had only a temporary address here. Apodaca expressed surprise that he had to register before he had a permanent address and that failure to do so was a felony. He also told the officer that he was living at 1634 Honeysuckle Drive and that he did not register because he did not want his room-mates to know about his criminal past. He was released from custody two days later and then registered with the San Jose Police Department for the first time on November 25, 1997.

Apodaca testified at trial. He explained his understanding of his registration obligation thusly: ". . . my version, my definition, was that when I would get a permanent address, when I would find a place to anchor in, that that would be — I would have to register under that address. . . ." RT 35.

Apodaca's daughter testified that Apodaca had stayed with her at 676 Garland in Sunnyvale for short periods of time in July 1997, and that she intended to have Apodaca live at her home after another resident moved out. Apodaca moved, in with her in late December 1997 or earlier January 1998.

Apodaca admitted that he was convicted of "abduction" in Monterey County, Ohio, in 1987, of two counts of robbery and attempted robbery in Santa Clara County in 1982, of felony sexual assault in Colorado in 1979, and kidnapping in San Francisco in 1973.

B. Case History

Michael Apodaca was convicted following a bench trial in the Santa Clara County Superior Court of failure to register as a sex offender (Cal. Penal Code § 290(g)(2)) and was found to have suffered six serious felony convictions (Cal. Penal Code §§ 667(b)-(i), 1170.12. He was sentenced to a prison term of 25 years to life.

Apodaca appealed. The judgment of conviction was affirmed by the California Court of Appeal and the petition for review was denied by the California Supreme Court. He then filed this action for a writ of habeas corpus and asserted two grounds for relief. The court issued an order to show cause, directing respondent to show cause why the writ should not be granted on Apodaca's claims that (1) his right to due process was violated because there was no proof of adequate notice to him of the duty to register and (2) his 25-to-life sentence amounts to cruel and ...

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