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People v. Wallace

August 18, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HENRY WALLACE, DEFENDANT AND APPELLANT.



(Contra Costa County Super. Ct. No. 050714741) Trial Judge: Hon. Nancy Davis Stark.

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

CERTIFIED FOR PUBLICATION

This is an appeal from the judgment following the conviction of appellant Henry Wallace by a jury for willfully failing to notify, register, and annually update his registration as a sex offender coming within the provisions of Penal Code section 290. Appellant challenges his conviction on all counts on grounds of insufficiency of the evidence and instructional error. As explained below, we reverse appellant‟s conviction with respect to counts two and three, and in all other respects affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 25, 2007, an information was filed charging appellant as follows:

(1) on or about April 2007, failing to provide notice to the appropriate law enforcement agency within five working days of his new address or location (Pen. Code, § 290, subd. (f)(1)) (count one), (2) on or about April 2007, failing to register within five working days of changing his address or location (Pen. Code, § 290, subd. (a)(1)(A)) (count two), and (3) on or about December 2006, failing to complete his annual registration within five working days of his birthday (Pen. Code, § 290, subd. (a)(1)(D)) (count three).*fn1 The information further alleged that appellant, prior to the commission of the offenses charged herein, was convicted of two felony strike sex offenses in January 1999 (§ 1170.12), for which he served a prison term (§ 667.5, subd. (b)).

Before trial, the parties stipulated that appellant, born December 7, 1942, had been convicted of unspecified sex offenses in January 1999 that subjected him to the notification and registration requirements of section 290.

A trial by jury began December 5, 2007. Several representatives of the Pittsburg Police Department, including community service specialists and a police officer, testified regarding the procedures for registering sex offenders pursuant to section 290, and regarding appellant‟s registration history with the agency. The testimony revealed the following facts.

On July 30, 2003, appellant first registered with the Pittsburg Police Department after he moved into the Mar Ray Motel, 1925 Railroad Avenue, Number 5, in Pittsburg, Contra Costa County. As part of the registration process, appellant initialed a form to acknowledge under penalty of perjury that he understood certain requirements. For example, appellant acknowledged: "My responsibility to register is a lifetime requirement." Further: "Upon coming into or when changing my address, within any city, county or city and county in which I am residing or located, I must register with the law enforcement agency having jurisdiction over my residence . . . within five working days." Appellant also acknowledged that "[w]hen changing my residence address, either within California or out-of-state, I must inform the registering agency with which I last registered of the new address within five working days."

On October 8, 2003, appellant returned to the Pittsburg Police Department to register a new address at the Mar Ray Motel -- 1989 Railroad Avenue, Number 39, in Pittsburg, Contra Costa County.

On December 3, 2003, appellant completed the annual update to his registration within five working days of his birthday, again identifying his current address as 1989 Railroad Avenue, Number 39, in Pittsburg, Contra Costa County. In addition, appellant initialed a form to acknowledge under penalty of perjury that he understood certain requirements. Specifically, he acknowledged that "[u]pon coming into or when changing my address within any city, county or city and county in which I am residing or located, I must register with the law enforcement agency having jurisdiction over my residence or location within five working days." He also acknowledged that "[w]hen changing my residence address, either within California or out-of-state, I must inform the registering agency with which I last registered of the new address or location within five working days."

On March 3, 2004, appellant registered the following new address at the Pittsburg Police Department -- 871 East 12th Street in Pittsburg, Contra Costa County.

On December 8, 2004, appellant completed the annual update to his registration within five working days of his birthday, again identifying his current address as 871 East 12th Street in Pittsburg, Contra Costa County. Appellant acknowledged in writing under penalty of perjury that he understood that "[u]pon coming into or when changing my address or location within any city, county or city and county in which I am residing or located, I must register with the law enforcement agency having jurisdiction over my residence or location as a sex offender within five working days." He also acknowledged that "[w]hen changing my residence address or transient location either within California or out-of-state, I must inform the registering agency in writing with which I last registered of the new address or transient location within five working days."

On October 19, 2005, appellant registered with the Pittsburg Police Department a new address identified as 861 East 12th Street in Pittsburg, Contra Costa County. Appellant acknowledged in writing under penalty of perjury that he understood that "[u]pon coming into or when changing my address within any county or city and county in which I am residing, I must register within five working days as a sex offender with a law enforcement agency having jurisdiction over my residence." He also acknowledged that "[u]pon changing my place of residence either in the present agency‟s jurisdiction or anywhere inside or outside of the State, I must inform in writing within five working days the law enforcement agency with which I last registered." He further acknowledged: "If a move is to a new jurisdiction, I must re-register my address in person."

On December 7, 2005, appellant again completed the annual update to his registration within five working days of his birthday, identifying his current address as 861 East 12th Street in Pittsburg, Contra Costa County. In addition, appellant acknowledged in writing under penalty of perjury having read an advisement regarding his registration and notification duties as a sex offender that was identical in all material respects to that which he acknowledged reading on October 19, 2005.

On January 11, 2006, appellant registered with the Pittsburg Police Department a new address identified as 875 East 12th Street in Pittsburg, Contra Costa County.*fn2 In doing so, appellant acknowledged in writing under penalty of perjury having read an advisement regarding his registration and notification duties as a sex offender that was again identical in all material respects to that which he acknowledged reading on October 19, 2005, and December 7, 2005.

Following his registration on January 11, 2006, appellant never again contacted the Pittsburg Police Department. Nor did appellant register anywhere else in the State of California after that date.

On October 1, 2006, a real estate broker listed for sale on behalf of an individual named Joe Davi the property at 877 East 12th Street. The broker inspected the property on November 29, 2006, finding a duplex with a commercial space on the ground floor and a residential unit on the second floor. The commercial space was marked "877," and the broker did not know whether the upstairs residential unit had a separate address. The residential unit was vacant. There was a person, not appellant, living in the commercial space.

In all, the real estate broker inspected the property at 877 East 12th Street six times between November 2006 and May 2007. Appellant was not present at the property during any of those times.

Detective Eric Solzman of the Pittsburg Police Department testified that, in April 2007, he inspected 875 East 12th Street in Pittsburg, the address listed on appellant‟s January 2006 registration form. The ground floor unit had an address of 877 East 12th Street and the upstairs unit had an address of 875 East 12th Street. Detective ...


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