APPEAL from a judgment of the Superior Court of Madera County. John W. DeGroot, Judge. (Super. Ct. No. MCR025262).
The opinion of the court was delivered by: Dawson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant was charged with failure to register as a sex offender (Pen. Code, § 290)*fn2 and with having been convicted of four prior serious felonies (§ 667, subds. (b)-(i)) and having served a prior prison term (§ 667.5, subd. (b)).
On August 16, 2007, after a three-day trial, appellant's jury returned a verdict finding him guilty of the substantive offense. That same day appellant admitted the truth of the special allegations.
On September 14, 2007, the court denied appellant probation, declined a defense request to strike the prior conviction allegations under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to a total term of 26 years to life in prison.
On September 18, 2007, appellant filed a timely notice of appeal. He contends that his conviction of failing to register is not supported by the evidence, that his jury was improperly instructed, and that his attorney did not provide effective representation. We will affirm.
Appellant was released from state prison on Wednesday, May 24, 2006, on parole after a Madera County conviction of forcible rape in concert. He took an Amtrak train back to Madera and spent his first night after release with a friend. He could stay there only one night, however, because the friend was moving.
Within 24 hours of his release, as required, appellant met with parole agent and officer of the day Gloria Chadwick for an initial interview. During such an initial interview, a parolee is informed of any requirements for registration with the police or the sheriff, depending upon the parolee's place of residence. During appellant's initial interview, on Thursday, May 25, 2006, Agent Chadwick marked "Yes" and circled "PC 290" on the intake form. Chadwick testified that this meant she personally advised appellant to register within five days under section 290. In the comments section of the form, Agent Chadwick noted: "To register, 290 PC by 5-31-06." Chadwick directed appellant to meet with his assigned parole agent, Todd Cregar, on Friday, May 26, 2006.
Appellant spent the night of Thursday, May 25, 2006, at the Madera Rescue Mission (the Mission).
On May 26, 2006, appellant met with Agent Cregar and advised Cregar he was staying at the Mission. Appellant had not yet registered with either the police or the sheriff. Cregar directed appellant to register and noted in his parole file that appellant must register by May 31, 2006. Cregar informed appellant that appellant could not remain at the Mission. It was too close to a school to allow for appellant's residence.
Cregar arranged for appellant to stay at the Casa Grande Motel (the Motel) in Madera. He drove appellant and another parolee to that motel and directed both to register with the Madera Sheriff's Department since the Motel was located in the County of Madera. Appellant spent that night, Friday, May 26, 2006, at the Motel.
Cregar made a mandatory home visit within five days of placing appellant at the Motel, but appellant was gone from his assigned room and had taken all of his personal belongings with him. Cregar returned another day but appellant was still not present.
Appellant had moved to the home of a cousin in the City of Madera on Saturday, May 27, 2006. He had done so, according to his testimony, because he had been kidnapped and threatened by certain people who came to his room at the Motel. He had escaped but remained afraid of them. He made no attempt to contact Agent Cregar, and he did not register. He remained at the home of his cousin until his arrest on Saturday, June 3, 2006. At that time, he had been out of prison and in Madera for 10 days, not counting the day of his release. He had passed six full working days, not including the day of his release, in Madera. These were Thursday and Friday, the 25th and 26th of May, as well as Tuesday through Friday, May 30th through June 2d, 2006. Monday, May 29th, had been the Memorial Day holiday.
Appellant testified he had lived in Madera most of his life, his family lived in Madera, and he regularly returned to Madera upon his release on parole, which had occurred several times after his 1990 conviction for rape and burglary. Appellant said he tried to register at the Madera Police Department on Friday, May 26, 2006, before his visit with Agent Cregar, but he was turned away because he did not have an appointment or any identification.
Appellant acknowledged in his testimony that he was aware of his registration requirements. Evidence was presented that he previously had incurred parole violations for failing to comply with those requirements.
I. Was There Sufficient Evidence to Show Appellant Failed to Register Within the Meaning of Section 290?
Appellant contends the prosecution presented no direct or circumstantial evidence that he failed to register within the "five working days" specified in section 290. He notes there were only 10 days-not including the day of his release-during which he could have established a "residence" before his arrest and only six "working days" during that same period of time. Given his arrest on Saturday, June 3, 2006, appellant maintains, the five-working-day grace period of section 290 could have lapsed only with respect to a residence established on either Wednesday, May 24, 2006, or Thursday, May 25, 2006. In appellant's view, the evidence did not show that he had established a residence on either of those dates because (1) the friend's house, where he stayed the first night after his release, was not open to ...