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The People v. Jason Marshall

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JASON MARSHALL, DEFENDANT AND APPELLANT.

(Super. Ct. No. 08F08735)

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

P. v. Marshall

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jason Marshall was found guilty by a jury of failing to register as a sex offender when he failed to inform authorities that he was residing at a house on Lemitar Way. (Pen. Code, § 290.018, subd. (b).)*fn1 He contends his conviction should be reversed because the statutory definition of "residence" is unconstitutionally vague. He further contends that the trial court "defused" the residency requirement by instructing the jury that he was required to register whenever changing or establishing a new or temporary residence. We affirm.

BACKGROUND

Defendant, a convicted sex offender, had been registering as a "transient" on a monthly basis from July to October 2008. Defendant wrote that he was "homeless" and, on each occasion, he initialed the condition that stated: "If I have more than one residence address at which I regularly reside (regardless of the number of days or nights I spend at each address), I must register all of the addresses with the law enforcement agency or agencies having jurisdiction over these residences."

On October 7, 2008, Detective Kevin Patton received information from a probation officer that defendant might not be homeless or transient, but might be living at an address in the north area of the city. Two weeks later, as part of a surveillance operation, Patton and other officers followed defendant to Lemitar Way. When the officers knocked on the door of the house on the corner of Lemitar Way and Pebblewood Drive, defendant came to the door. The officers handcuffed defendant.

Patton then spoke to the homeowner, Ida Trujillo, about defendant's presence in the home. She said that defendant "stay[ed]" there and would sometimes sleep on the couch, and at other times, he slept in the garage where her 46-year-old son lived. Defendant was a friend of her son and had stayed overnight in the house four nights a week for the past four months. Defendant ate and took showers at the house, and gave her approximately $65 a week in food stamps when he did his laundry there. Trujillo recanted at trial, stating defendant spent one night a week in the garage and did not eat or shower there.

James Vinson lived on Pebblewood Drive, around the corner from Trujillo's house. He testified that he saw defendant near or around the Trujillo residence six to seven days a week for many months prior to defendant's arrest. During any one-week period in October 2008, Vinson estimated he saw defendant standing outside the Trujillo house on seven or eight occasions--often twice in one day. Sometimes it was in the morning, more often in the afternoon, and most often in the evening.

Robert Tanner also lived on Pebblewood Drive. He testified he often saw defendant outside or around the Trujillo house, and often working on a truck in the driveway. He first noticed defendant in the neighborhood in February 2008. Since that time, he saw defendant, usually in the Trujillo driveway, almost every day. He saw defendant there at various times throughout the day, including weekends, and often saw him go into the Trujillo house or garage. He presumed defendant lived there.

Defendant did not testify.

The jury was instructed with the elements of the offense as follows:

"The defendant is charged in Count 1 with failure to register as a sex offender in violation of Penal Code section 290.018[, subdivision] (b).

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant was previously convicted of committing a felony sexual offense;

"2. The defendant resided in Sacramento, California;

"3. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resided;

"AND

"4. The defendant willfully failed to register as a sex offender with the police chief of that city within five working days of changing his residence within that city or establishing a new or temporary residence within that city.

"Someone commits an act willfully when he does it willingly or on purpose.

"A 'residence' means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles."

The jury found defendant guilty.

DISCUSSION

Defendant contends the registration statute is unconstitutionally vague because it does not make it reasonably clear when he must register a residence. Specifically, he complains that the statutory definition of "residence" as being an address at which he "regularly resides" has meanings that would not require registration under his transient circumstances. We reject his contention.

The purpose of the registration statute "'"is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future."' [Citation.] [¶] This objective would be defeated entirely were an offender allowed to remain at one or more undisclosed locations on a regular basis, even if the locations were not the offender's exclusive abode. [Citations.] '[S]ex offenders often have a transitory lifestyle or deliberately attempt to keep their movements secret.' [Citation.] An offender would hardly be subject to 'surveillance at all times' if he or she were not required to register addresses at which the offender spent more than a brief, passing amount of time. [Citation.]" (People v. Horn (1998) 68 Cal.App.4th 408, 417 (Horn).)

In accordance with this purpose, and as relevant here, the statute provides that a transient who moves to a residence has five working days within which to register at that address.*fn2 (§ 290.011, subd. (b).) Section 290.011, subdivision (g) specifically defines "residence" as "one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles."

The court in People v. Gonzales (2010) 183 Cal.App.4th 24, 39 recently rejected the notion that the definition of "residence" adopted in section 290.011, subdivision (g) is unconstitutionally vague. The court found the definition reasonably certain to provide offenders and law enforcement with notice of the registration requirement when considered in context with other terms and in view of the legislative purpose. (Ibid.)

Using a "wordsmith" approach, however, defendant separately plucks the words "regularly" and "resides" from the statutory definition of "residence" and argues that "the statute is thus unclear and fails to inform those charged with obeying it about what behavior is required."

Defendant points out that the word "resides" is defined in Webster's Ninth New Collegiate Dictionary (1989) page 1003 as "'to dwell permanently or continuously'" or to "'occupy a place as one's legal domicile.'" He argues that, therefore, the common definition of "reside" suggests more permanence than the statutory definition provided to the jury, creating vagueness. We disagree.

The transient registration statute itself removes any notion that a person must dwell permanently or continuously at an address in order to trigger the registration requirement. Indeed, it specifically states "regardless of the number of days or nights spent there," and lists examples of temporary locations such as motels and homeless shelters. (§ 290.011, subd. (g).)

Likewise, section 290.010 requires a registrant to "provide the registering authority with all of the addresses where he or she regularly resides," "regardless of the number of days or nights spent there," whenever the registrant "has more than one residence address at which he or she regularly resides." It is thus clear that "resides" could not be reasonably construed to mean continuously and permanently, since the statutory scheme specifically provides for registration of multiple residences.

Moreover, as explained in Horn, the statutory objective would be defeated entirely were an offender allowed to remain at one or more unlicensed locations on a regular basis, as long as that location was not considered by the offender to be permanent, continuous, and exclusive. (Horn, supra, 68 Cal.App.4th at p. 417.)

Defendant also complains that the word "regularly" has a common definition that would not have required he register the Lemitar Way address as a residence. He argues that the word "regular," from which the word "regularly" is derived, has many meanings, including "'orderly,'" "'methodical,'" or "recurring, functioning, or attending at fixed or uniform intervals." From this he argues that even though he may spend four nights a week at the Lemitar Way address, because the prosecution did not establish he spent the same nights each week or arrived and departed at the same time, he could reasonably conclude his stays were not "regular." We reject his strained construction of the statute. Here again, Gonzales is instructive. "The definition provided in section 290.011[, subdivision] (g) makes it clear the Legislature did not intend to limit registration to a narrower definition than that provided in section 290.011 . . . . Such definition is broad, with no limitations as to a set amount of time or time of day for a finding of residence." (Gonzales, supra, 183 Cal.App.4th at p. 37.)

Nor do we look at the word "regular" in a vacuum. "Terms that might otherwise be considered vague may meet the standard of reasonable certainty when considered in context with other terms, and in view of the legislative purpose." (People v. North (2003) 112 Cal.App.4th 621, 628.) In light of the rest of the statutory definition of "residence" and the legislative purpose, it is reasonably clear that where a registrant "regularly resides" includes any address, regardless of the number of days or nights spent, where the registrant commonly stays or stays on a recurring basis--an address to which the registrant intends to return, as opposed to where one rests or shelters on a single instance during a trip or transient visit. (See Horn, supra, 68 Cal.App.4th at pp. 414-420; People v. McCleod (1997) 55 Cal.App.4th 1205, 1218.)

In any event, even under defendant's strained construction of the word "regular," a person would reasonably understand that his living arrangement would trigger the need to register the Lemitar Way address. Defendant stayed at the Lemitar Way house several times every week and had kept up this schedule for at least four months. Neighbors observed defendant outside the home daily. Such conduct is orderly, methodical, and recurring at uniform intervals, regardless of which particular days of the week he stayed. Thus, under any plausible reading of section 290.011, subdivision (g), defendant was required to register the Lemitar Way address.

Finally, with respect to defendant's complaint that the trial court instructed the jury he was required to register whenever changing or establishing a new or temporary residence, we disagree with defendant that this accurate statement of the law somehow "defused" the residency requirement.

Defendant argues that "[t]he common understanding of the word 'temporary' [something that lasts a limited time] directly contradicts the statutory definition of residence [a place where one 'regularly' resides.]" (Bracketed language in original.) He is wrong. As set forth herein, "resides" does not, within the meaning of the statute, require defendant to dwell permanently or continuously. A registrant is required to register all addresses where he temporarily but regularly resides. The jury was accurately instructed on the definition of "residence," which includes the requirement that it be one or more addresses at which the person regularly resides, regardless of the number of days or nights spent.

The correctness of jury instructions is determined from the entire charge of the court, and we assume the jurors are intelligent persons capable of understanding and correlating all of the instructions given. (People v. Castillo (1997) 16 Cal.4th 1009, 1016; People v. Mills (1991) 1 Cal.App.4th 898, 918.) We find nothing inconsistent or confusing about the instruction provided to the jury, nor any reasonable likelihood the jury misunderstood the instructions in the manner defendant asserts. (People v. Cain (1995) 10 Cal.4th 1, 36.)

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON, J. ROBIE, J.


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