IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 28, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES CHARLES LAWLESS, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Frederick A. Mandabach, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. (Super.Ct.No. SWF025048)
The opinion of the court was delivered by: Richli J.
P. v. Lawless
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant and appellant James Charles Lawless guilty of failing to register as a sex offender having previously been convicted of committing a rape (Pen. Code, § 290, subd. (g)(2))*fn1 (count 1); failing to register as a sex offender within five days of changing his residence (§ 290, subd. (a)(1)) (count 2); and failing to inform a law enforcement agency where he previously registered as a sex offender of his change of address (§ 290, subd. (f)(1)) (count 3). In a bifurcated proceeding, defendant admitted that he had suffered five prior prison terms (§ 667.5, subd. (b)) and two prior serious and violent felony convictions (§§ 667, subds. (c) & (e)(2), 1170.12, subd. (c)(2)(A)). As a result, defendant was sentenced to an indeterminate term of 25 years to life as follows: 25 years to life on count 2 (the base term) and 25 years to life on counts 1 and 3, which were stayed pursuant to section 654; the court also stayed the prior prison term enhancements.
On appeal, defendant contends (1) his conviction on count 1 must be vacated because that count does not constitute an offense, and (2) the abstract of judgment must be corrected to delete the reference that he was sentenced pursuant to section 667.61. We agree and will accordingly modify the judgment.
Defendant had previously been convicted of a felony sex offense. He therefore had a mandatory lifetime duty to register as a sex offender under section 290.
In April 2007, defendant was on parole and living in a motel in Orange County. He had regular meetings with his parole officer and was aware that he had to register within five days of any change of residence. Defendant signed documents indicating that he understood that requirement.
In June 2007, defendant stopped contacting his parole officer and moved into his son's residence in Riverside County. On August 15, 2007, defendant's son called defendant's parole officer and informed him that defendant was living there. Defendant's son then notified the police, who subsequently arrested defendant. Defendant acknowledged his duty to register as a sex offender but claimed he did not do so because he was "on the run" from authorities.
Defendant had neither registered as a sex offender with Riverside County nor informed Orange County that he had moved. He had registered 18 times over the previous years. He had last updated his registration in April 2007, when he had registered his motel address in Orange County.
A. Vacating Count 1
Defendant contends that his conviction on count 1 under section 290, subdivision (g)(2) must be vacated because that count does not constitute a public offense. The People correctly concede.
At the time of defendant's offenses in 2007, section 290, subdivision (a)(1)(A) required sex offenders to register with the appropriate law enforcement authorities within five days of changing their residence or location. Similarly, section 290, subdivision (f)(1) required those offenders, when they moved, to inform the law enforcement agency where they last registered of their new address or location. Section 290, subdivisions (a)(1)(A) and (f)(1) "are separate, albeit closely related, requirements." (People v. Britt (2004) 32 Cal.4th 944, 951.) A defendant may be convicted of violating both of these subdivisions. (Ibid.)
"Section 290, subdivision (g)(2) provides that failure by a sex offender registrant to notify authorities of a change of address constitutes a felony if the underlying offense requiring registration is a felony." (People v. Gonzalez (2007) 149 Cal.App.4th 304, 307.) Specifically, "[s]section 290, subdivision (g)(2) provides in relevant part: 'Except as provided in paragraphs (5), (7), and (9), any person who is required to register under this section based on a felony conviction or juvenile adjudication who willfully violates any requirement of this section or who has a prior conviction or juvenile adjudication for the offense of failing to register under this section and who subsequently and willfully violates any requirement of this section is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years. . . .'" (Id. at p. 307, fn. 4.)
In this case, defendant was charged with, and convicted of, violating section 290, subdivisions (a)(1)(A) (count 2) and (f)(1) (count 3). "A violation of the statute can be either a misdemeanor or a felony depending on whether the registrant's underlying sex offense was a felony or misdemeanor. [Citations.] Subdivision (g)(1) provides for imprisonment in county jail if the registerable offense is a misdemeanor, while subdivision (g)(2) provides for imprisonment in state prison if the registerable offense is a felony. Section 290, subdivision (g)(2) is a mandatory sentencing provision that requires the imposition of a felony sentence whenever a person is required to register based on an underlying felony sex offense. [Citation.]" (People v. Gonzalez, supra, 149 Cal.App.4th at p. 308.) Subdivision (g) of section 290 does not define a separate substantive offense with its own elements; rather, it merely provides for alternative punishment depending on whether the registrant's underlying sex offense was a felony or misdemeanor. (See People v. Musovich (2006) 138 Cal.App.4th 983, 987, 989 [the prosecutor did not properly charge the defendant with violating subdivision (g)(2) of section 290]; People v. McCleod (1997) 55 Cal.App.4th 1205, 1209, fn. 4 [the People correctly noted that subdivision (g)(2) of section 290 defines the punishment term for violating section 290, subdivision (f)].)
Accordingly, defendant's conviction on count 1 for violating subdivision (g)(2) of section 290 must be vacated.
B. Correction of Abstract of Judgment
Defendant next asserts, and the People correctly concede, that the abstract of judgment erroneously notes that he was sentenced pursuant to section 667.61 rather than section 667. We also agree and will order the abstract of judgment amended accordingly.
C. Staying of Prior Prison Terms
Although not raised by either party, we also note that the trial court erred by staying the sentence on the section 667.5, subdivision (b) prior prison term enhancements rather than striking them. Because the record shows that the trial court did not intend to impose a sentence on those prior prison terms, we will order the trial court to strike those prior prison terms.
A trial court must either impose or strike a prior prison term enhancement pursuant to section 667.5, subdivision (b). (People v. Langston (2004) 33 Cal.4th 1237, 1241 ["the trial court may not stay the one-year enhancement, which is mandatory unless stricken"]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 ["the court must either impose the prior prison enhancements or strike them"].) The trial court must provide a rationale for using its discretion to strike a mandatory prior conviction enhancement. (People v. Jordan (2003) 108 Cal.App.4th 349, 368.) "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Here, although the trial court denied defendant's motion to strike one or both of his prior serious and violent felony convictions, it gave an indication that it intended to be lenient with defendant or impose a lesser sentence. At the time of the sentencing hearing, in regard to the prior prison term allegations, the following colloquy occurred between the court and the parties:
"[DEFENSE COUNSEL]: I would obviously ask the Court, because the Court has the ability to stay those prison priors, based on the age of my client and the age that he will even be eligible for parole, to consider -- and the facts of this case, I know the Court didn't consider Romero*fn3 should be granted, but maybe based on the facts of the case and what happened for the Court to consider staying those.
"THE COURT: Does the Court have authority to do that?
"[DEFENSE COUNSEL]: Yes. It cannot strike serious priors, which are the five-year priors, but the Court can stay the prison [priors].
"THE COURT: [Prosecutor]?
"[THE PROSECUTOR]: That is correct, your Honor. The Court does have that discretion. I would just indicate that . . . the enhancements for prison priors are there to impose additional punishment for an individual who consistently and continuously is sent back to prison and doesn't remain free of custody for a five-year period of time. And as I previously stated, from about 1989, this defendant has been nothing but in and out of prison on new convictions and parole violations, and when he is in prison, he can't behave. So really, on balance, when the Court looks at, has the defendant done something to warrant the Court being lenient with him, this defendant absolutely has not. And so I would ask the Court to impose those prison priors.
"THE COURT: I see. All right. Since no one objects to the Court making Count 2 the term, I will impose term 25 years to life as I indicated before as to Count 2, and apply 654, if that's the appropriate section, to Counts 1 and 3. . . . [¶] As far as prison priors, there are four.[*fn4 ] You've probably seen me agonize on this one. It's about as close as I've come to striking a Romero. The Court will stay the four prison priors."
Based on the record, it appears the trial court would have struck the prior prison term enhancements had it been aware it could not stay the sentence on the enhancements.
The judgment is modified to vacate defendant's conviction on count 1. The judgment is also modified to strike all four prison priors that the court imposed and stayed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications, including the correction indicated in part II.B, ante, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P.J. CODRINGTON J.*fn5