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People v. Nichols

August 5, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID ALLEN NICHOLS, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Placer County, James D. Garbolino, Judge. Affirmed as modified. (Super. Ct. No. 62-052831).

The opinion of the court was delivered by: Nicholson, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

This case presented a simple factual question for the jury to resolve -- did defendant David Allen Nichols, a convicted sex offender required to register under former Penal Code section 290, register with the Rocklin Police Department within five days of moving out of Rocklin? The jury determined he did not, in violation of former Penal Code section 290, subdivision (f)(1).*fn2 (See current § 290.013, subd. (a).)

The jury also determined, however, that defendant had previously been convicted of three felonies and found true the allegation that these felonies constituted serious felonies within the meaning of the "Three Strikes" law. (§§ 1170.12, subds. (a)--(d); 667, subd. (b)--(i).) In addition, the trial court determined defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b).

The trial court denied defendant‟s motion to strike his prior "strike" convictions, and it sentenced him to a prison term of 28 years to life: 25 years to life on the failure to register, plus one year for each of the prior prison terms.

Defendant appeals, alleging the following to be prejudicial errors:

1. The trial court admitted excessive and inflammatory evidence;

2. The prosecutor committed misconduct;

3. The court committed instructional error;

4. The true findings on the "strike" priors were not supported by substantial evidence;

5. The true findings on two of the prior prison term findings were not supported by substantial evidence;

6. The court erred in refusing to submit any prior conviction issues, except authentication, to the jury;

7. Theses errors constituted cumulative error;

8. The court abused its discretion when it denied defendant‟s motion to strike his prior strikes;

9. The prison sentence under the Three Strikes law constituted cruel and unusual punishment; and

10. The abstract of judgment must be corrected to recite the correct statutory authority for the prior prison term enhancements.

Except to order the abstract of judgment corrected, we affirm the judgment.

FACTS

Testifying at trial, defendant admitted three prior felony convictions. He was convicted in 1978 in Oregon of robbery; in 1982 of armed bank robbery, a federal offense; and in 1996 in Humboldt County of forcible oral copulation in violation of section 288a. Defendant committed this last offense in 1994 while he was on federal parole.

Defendant knew he was required to register under section 290 as a result of his sex offense conviction. Indeed, when asked if he was aware of his requirement to register, defendant replied, "Yes, pretty deeply actually." After completing his state prison sentence on the sex crime, he served four more years in prison due to the federal parole violation. During this incarceration and while serving as the head education clerk, he helped assemble a database of resources inmates could use upon their release. As part of this process, he specifically researched the registration requirements imposed on him under California law. He knew he had to register each time he moved.*fn3

Defendant was released from custody in November 2004. Dayna Ward, a federal parole officer, supervised defendant. She had supervised him briefly in 1994 when he was first placed on federal parole. She met with defendant upon his release from state prison in 2004 and reviewed with him a notice of requirements for sex offender registration. Defendant signed the form, and Officer Ward directed him to register within five days.

Officer Ward also reviewed with defendant his conditions of parole. One of those conditions required defendant to notify his parole officer within two days of any change of his residence. Another condition prohibited defendant from leaving or moving out of the boundaries of the federal judicial Eastern District of California without prior approval from a parole officer.

In December 2004, upon his release from custody, defendant registered in Sacramento, the city where he lived. He registered again in Sacramento on January 24, 2005, upon changing his address. He registered in Sacramento a third time upon his birthday, February 15, 2005, as required by former section 290.

In early March 2005, defendant moved to a new residence on Aitken Dairy Road in Rocklin. He leased his Rocklin residence along with five other tenants: Eliza Edwards; defendant‟s business partner, Jim Dresser; a Russian couple; and the homeowner‟s father.

Upon moving to Rocklin, defendant registered with the Rocklin Police Department. He also informed Officer Ward of his new address. (There was no record, however, that he notified the Sacramento Police Department of his move to Rocklin. Defendant was not charged with this omission.)

In early April 2005, defendant left the Eastern District without permission from his parole officer and he moved out of the Rocklin house. On or about April 4, defendant told cotenant Edwards he had had an altercation with Dresser, and he asked if she would take care of his cat. He said he had to go and that he would be back. She heard him leave on his motorcycle. She never saw him again at the house.

Defendant testified that he drove to Big Sur, looked at the ocean, and then decided to go back. On April 7, 2005, he went into the parole office to speak with Officer Ward. She was on vacation, so he met with her supervisor, Officer Richard Ertola. He told Officer Ertola he had left the district on April 4. Officer Ertola took the violation under advisement, and he told defendant to contact Officer Ward on April 18.

However, defendant testified that after meeting with Officer Ertola, he got on his motorcycle and left. He never went back to Rocklin. He also had no further contact with Officer Ward.

Defendant drifted around the country, attending shows and festivals, and "hiding out with the hippies." He was arrested on December 31, 2005, in San Francisco. He gave a false name to the police when he was arrested because, he said, he knew he had violated his parole.

The factual dispute at trial, which the jury decided against defendant, centered on whether defendant complied with his section 290 registration requirements when he "moved" from his Rocklin residence. Clerks from the Rocklin Police Department identified defendant‟s registration dated March 14, 2005, which defendant filed when he moved to Rocklin. One of the clerks who reviewed defendant‟s registration that day, Deeann Ralphs, noticed he had not provided any information about vehicles he owned. Defendant said he did not own any, so she wrote "NA" on the form. She would not have written NA unless he had told her he did not own any vehicles.

Ralphs, who was the police department‟s custodian of records, said defendant did not register again with the Rocklin police department because there were no additional registration forms in the file. Defendant had submitted a copy of his lease for the Aitkin Dairy Road residence, but there were no records in the file indicating defendant had changed his address after March 14, 2005.

Defendant, however, testified he returned to the Rocklin police department twice after registering there on March 14, both times in response to the clerks‟ request that he provide proof of his residence and vehicle information. On the first occasion, he went in without an appointment to drop off a copy of his lease agreement.

The second occasion occurred in April right before he left for Big Sur. He claimed that on this visit, he completed a form to provide the department with the vehicle identification number from his motorcycle. Where the form asked for his address, defendant wrote his Aitkin Dairy Road address and then wrote the words "in transit" after it. He gave the completed form to a clerk and left. He did not receive a copy of the form. It was defendant‟s understanding that writing the word "transit" on the form satisfied his obligation to inform the police department of his move out of Rocklin since he did not know where he would be living and he would be transient.

On the prosecution‟s rebuttal, department clerk Ralphs testified that a registrant who is moving and is going to become transient must note that information on a form. She also stated that registrants always receive a copy of their completed registration forms. The two other clerks who worked for the department testified they had not processed any paperwork for defendant regarding his move out of Rocklin.

We will provide additional background information as necessary.

DISCUSSION

I. Admission of Excessive and Inflammatory Evidence

Defendant claims he suffered a denial of due process when the trial court admitted excessive, inflammatory, or propensity evidence. He specifically targets: (1) the parole officers‟ testimony regarding their explaining the registration requirements to him, disclosing his parole status to the jury, and testifying that he absconded from parole; (2) the court‟s failure to sanitize a certification of registration prepared by the Department of Justice and admitted into evidence that disclosed his underlying sex conviction as possibly being an act against a minor; (3) the court‟s refusal to admit evidence that defendant‟s listing in a public data base as a child molester was error; and (4) the court‟s denial of his motion for a mistrial due to Dresser‟s statement while on the stand that he had received death threats after changing the locks at the house. Defendant also claims these errors were cumulative. We review each contention.

A. Parole Officers' Testimony

Defendant claims the testimony of Officers Ward and Ertola was excessive, prejudicial, and improperly used to establish propensity. He asserts their testimony was not needed to show his knowledge of the registration requirements or that he left Rocklin, as those elements were established by the clerks from the Rocklin Police Department and his former roommates. Also, the officers‟ titles as parole officers and their official forms could have been sanitized. Using the federal parole violation to show he left Rocklin was, in his words, "prejudicial overkill."

To prove a violation of section 290, the prosecutor had to establish, among other points, that defendant actually knew he was required to register within five days of his move out of his Rocklin residence. (Former § 290, subd. (b).) Officer Ward‟s testimony that she informed him of his registration requirements was relevant to establishing this element. That the Rocklin Police Department clerk also gave defendant a form with the same information on it the following year did not render Officer Ward‟s testimony cumulative. Both witnesses‟ testimony was relevant to establishing actual knowledge.

The prosecutor also had to establish that defendant moved from Rocklin. Officer Ertola‟s testimony that defendant told him he left Rocklin with the intent not to return was relevant to establishing this element. Although this was an admission by defendant of absconding from parole, it was not unduly prejudicial, as its probative value outweighed any prejudicial impact it may have had on the jury. As the trial court noted, if defendant absconded from parole, he could not argue that he did not change his address.

Defendant also faults this evidence because the prosecutor allegedly used it to argue propensity, i.e., that defendant‟s willingness to violate parole makes his assertion of complying with registration requirements unbelievable. We will address this argument below as one of prosecutorial misconduct.

B. Sanitization of Underlying Sex Offense Evidence

Defendant faults the trial court for refusing to sanitize the Department of Justice‟s certification of his registration history. The document listed defendant‟s sex offense as a violation of section "288a(c)," "oral copulation with person under 14/etc or by force/etc." Defendant claims the document unfairly suggested to the jury that his offense involved a child when in fact it did not. The crime was one of force against an adult, in violation of section 288a(c)(2).

The parties stipulated that the offense would be referred to only as a felony sex offense requiring registration. The prosecution also agreed to defendant‟s request to redact the conviction information on the registration form. The trial court, however, refused defendant‟s request. It admitted the form unredacted but subject to an instruction that the jury not consider the form‟s conviction and release information.

The court did not abuse its discretion in admitting the form in its original state. The court‟s instruction was adequate to remove the potential for undue prejudice. By following the admonition, the jurors would not have considered defendant‟s crime may have been against a child. We assume jurors follow admonitions given them. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.)

C. Evidence of Defendant's Listing as a Child Molester

Officer Ertola testified that defendant told him he left the district on April 4 because he became upset over an incident that occurred with his co-workers at work. On cross-examination, defense counsel wanted to inquire about what had happened at defendant‟s work. Counsel asked Officer Ertola: "What upset [defendant] was given the fact that his prior sex offense involved a 30-year-old adult female, the Megan‟s Law listed [sic] him as a child molester caused him to be upset?" The prosecutor objected to the question due to the parties‟ stipulation about the nature of the predicate offense. The trial court sustained the objection.

Defendant argues the trial court erred when it sustained the objection. He claims Officer Ertola‟s answer to the question was admissible under Evidence Code section 356.*fn4 That statute makes admissible any other conversation which is necessary to make a detached conversation previously admitted into evidence understood. As the issue at trial was defendant‟s credibility, defendant asserts he was entitled to introduce the remainder of Officer Ertola‟s conversation with him in order to blunt the implication that he was a child molester, and to explain that he left town for substantial reasons and not due to criminal propensity.

Due to the court‟s sustaining of the objection, there was no implication to blunt. Officer Ertola said nothing that implied defendant was a child molester. The ...


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