IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
April 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEVE BADUE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F01153)
The opinion of the court was delivered by: Duarte, J.
P. v. Badue
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Steve Badue of failing to register as a sex offender (Pen. Code, § 290.018, subd. (b))*fn1 after he failed to notify authorities that he was living with his mother. The trial court, having found defendant had a prior conviction for failure to register, denied probation and sentenced defendant to two years and four months in state prison.
On appeal, defendant contends the trial court committed error when it denied his request to instruct the jury on the defense of entrapment, declined to admit certain exhibits, and denied his motion to reduce his crime of conviction to a misdemeanor. Defendant also contends his low-term sentence constitutes cruel and unusual punishment under the Eighth Amendment. We shall remand solely for imposition of mandatory fees and fines and correction of errors in the abstract of judgment. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was a convicted sex offender, required to register pursuant to section 290 et seq. On February 1, 2010, Kevin Patton, a detective with the sexual assault felony enforcement (SAFE) team, observed defendant at the SAFE office in Sacramento updating his sex offender registration. A person who registers as transient but then lives at or moves into a residence must register the particular address of that residence. Patton noticed that, although defendant was registered as "transient," he appeared to be clean and well kept, raising Patton's suspicion that defendant might not truly be homeless.
Patton conducted an investigation and learned that defendant was on active parole and wearing a GPS monitoring device. According to police department records, defendant, a registered sex offender, had last registered on February 1, 2010, as "transient." Patton also learned that defendant's mother lived on Mack Road in Sacramento.
On February 16, 2010, defendant's parole agent, Wayne Wilkinson, informed officer Patton that the GPS reports (also known as "tracks") showed defendant had been at his mother's residence every day between the hours of midnight and 6:00 a.m. since February 1, 2010. Based on that information, defendant was taken into custody. He told police he showered, ate, and charged his GPS device at his mother's apartment and spent approximately 16 to 19 hours there each day. He said he registered as "transient," but provided his mother's address "as a place he hangs out." He also told police he slept during the day outside a nearby convenience store and went to his mother's house at night to work on his "legal paperwork."
Police went to the Mack Road residence where they met defendant's mother. She showed them boxes containing defendant's belongings stacked in the front room of her apartment and told them defendant had been staying with her since he was released from prison. She stated that defendant showered and ate at her apartment and slept on her floor.
Defendant was charged by first amended complaint, later deemed an information, with one count of failure to register under section 290 (violating § 290.018, subd. (b)). The complaint also alleged defendant had three prior convictions (§ 667.5, subd. (b)).
At trial, defendant denied having told police he spent 16 to 19 hours at his mother's house between February 1, 2010, and February 17, 2010, testifying instead that he spent "on average 13 hours out of every 24 hours" at the apartment and that he showered, shaved, ate, and did his laundry there. He denied having breakfast or lunch there, and stated he ate dinner there "sometimes, but not often." He testified that he was regularly at his mother's house between 9:00 p.m. and 4:30 or 5:00 a.m. He also admitted having several prior convictions for indecent exposure (§ 314).
Defendant sought to enter into evidence Exhibits A, B, C, D, E, F, G, G1, H, I and J.*fn2 The prosecution objected to Exhibits D through J as irrelevant; the trial court agreed and sustained the objection. The court also declined to instruct the jury on entrapment (CALJIC Nos. 4.60, 4.61, & 4.61.5).
The jury found defendant guilty as charged. The prosecution dismissed two of the three prior conviction allegations in the interest of justice. Defendant waived his right to a jury trial on the remaining prior which, after a bench trial, the court found to be true. Defendant's section 17, subdivision (b) motion to reduce the offense of conviction to a misdemeanor was denied.
The court denied probation and sentenced defendant to the low term of 16 months, plus one year for the prison prior, for an aggregate sentence of two years and four months in state prison. The court imposed restitution and parole revocation fines, "waiving" all other fees and fines in the interest of justice.*fn3
Defendant filed a timely notice of appeal. The court granted his request for a certificate of probable cause.
The Entrapment Instructions
Defendant contends the trial court erred in refusing his request to instruct the jury on entrapment. We find no error.
The trial court was required to instruct on entrapment only if substantial evidence supported that defense. (People v. Watson (2000) 22 Cal.4th 220, 222 (Watson).) "In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.] '[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect . . . is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning or other affirmative acts likely to induce a normally law-abiding person to commit the crime.'" (Id. at p. 223, italics omitted.)
We review the record to determine whether substantial evidence was offered by defendant in support of his claim of entrapment. (People v. McIntire (1979) 23 Cal.3d 742, 746.)
On appeal, defendant argues he was coerced by a parole agent to "conform to Proposition 83, Addendum/Special Conditions of Parole," particularly the conditions of parole prohibiting him from residing within 2,000 feet of any public or private school or park where children regularly congregate (or within 2,640 feet for specified high-risk sex offenders), those related to registration of transient status, and those requiring him to wear a GPS device. He claims he "did not willingly subject himself" to the special parole conditions and that he was "subjected to parole agent['s] outrageous behavior and outrageous parole conditions that have no relationship to his underlying offense [of public indecent exposure]."
To the extent defendant claims he was forced to sign special conditions of parole against his will, he does not offer a single piece of evidence to support his claim, nor is there any evidence in the record to demonstrate that a police officer, parole agent, or other person in authority presented defendant with "the simple opportunity to act unlawfully," let alone that such person badgered, cajoled, or importuned him, or otherwise acted in a manner "likely to induce a normally law-abiding person to commit the crime." (Watson, supra, 22 Cal.4th at p. 223.) Nor is defendant's repeated claim that he has been forced to agree to "outrageous parole conditions" evidence of any act or omission by any agent or officer causing defendant to violate his obligation to register as a sex offender under section 290.
In the absence of any evidence of entrapment, the trial court properly refused to instruct on that defense. There was no error.
Admission Of Defense Exhibits
Defendant contends the trial court erred when it refused to admit into evidence certain defense exhibits demonstrating entrapment by showing the "parole agent['s] outrageous behavior by imposing Proposition 83 'high risk sex offender' special conditions of parole not related to . . . defendant['s] underlying offense." Again, we find no error.
We review the trial court's ruling on the admissibility of evidence for abuse of discretion. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885; Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476.)
"[A]ll relevant evidence is admissible. . . . The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence." (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; People v. Carter, supra, 36 Cal.4th at p. 1166.)
Defendant requested that the trial court admit defense exhibits A, B, C, D, E, F, G, G1, H, I, and J. The court admitted exhibits A, B, and C, but denied admission of the remaining exhibits as "not relevant." The court did not abuse its discretion in excluding those exhibits.
Defendant, having previously been convicted of a felony violation of section 314, subdivision (1), thus requiring him to register as a sex offender under section 290, was charged with willfully violating a registration requirement of section 290 by failing to inform law enforcement of his new address and location within five working days of the change of address and location (§ 290.018, subd. (b)). Defense exhibits A, B, and C were properly admitted, each one being a form related to defendant's registration as a sex offender and therefore relevant to the issues at trial; namely, whether or not defendant complied with the registration requirements set forth in section 290.
Exhibits D, E, F and G were properly excluded as each relates to defendant's conditions of parole and therefore not relevant to the issue of whether or not defendant registered as required. Exhibits G1, H, and J were also properly excluded, each being a portion of legislation or law having to do with sex offender information and Proposition 83 ("Sex Offenders, Sexually Violent Predators. Punishment. Residence Restrictions and Monitoring. Initiative Statute"), but none constituting evidence or having any relevance to the issue of whether or not defendant registered as required.
Exhibit I was also properly excluded. That exhibit consists of the change of plea transcript related to defendant's prior 1998 conviction which, but for its value in confirming the prior conviction, is not relevant to the issue of whether or not defendant registered as required. The exhibit also consists of a "register of actions/docket" which, while informative as to defendant's criminal history, provides no evidence regarding the issue of whether defendant registered as required and is therefore irrelevant.
Defendant provides no basis to support his claim that the court's exclusion of Exhibits D through J violated his Sixth Amendment right, or any other right, to present his defense of entrapment. As previously discussed in part I of this opinion, there is no evidence to support an entrapment defense. Admission of the excluded exhibits would not have altered that fact. Because the excluded defense exhibits have no "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210), the trial court did not abuse its discretion in denying admission of Exhibits D through J.
Defendant's Section 17, Subd. (b) Motion
Without any citation to facts or analysis, defendant claims the court erred in denying his motion for a misdemeanor sentence. Defendant bears the burden of showing both error and prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972.) He can do neither.
Defendant was convicted of violating section 290.018, subd. (b), which provides for punishment "by imprisonment in the state prison for 16 months, or two or three years," thus rendering the crime a "straight felony." (People v. Feyrer (2010) 48 Cal.4th 426, 441-442 (Feyrer).) Section 17, subdivision (b) "'applies solely to a crime "punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail." That statute does not confer upon the trial court the authority to reduce a straight felony to a misdemeanor.'" (Feyrer, supra, 48 Cal.4th at pp. 441-442.)
The trial court had no authority to reduce defendant's crime, a straight felony, to a misdemeanor. There was no error.
Defendant argues that his sentence of two years and four months in prison violates the Eighth Amendment prohibition against cruel and unusual punishment. Again, defendant fails to support his contention with analysis or citation to authority and we reject it on that basis. (People v. Coley, supra, 52 Cal.App.4th at p. 972; People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Hardy (1992) 2 Cal.4th 86, 150.) Further, the claim is forfeited by defendant's failure to raise it in the trial court. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5; People v. Norman (2003) 109 Cal.App.4th 221, 229.)
In any event, the claim fails on the merits. Under the proscription of "cruel and unusual punishment" in the Eighth Amendment to the United States Constitution (applicable to the states via the Fourteenth Amendment), a "'narrow proportionality principle . . . applies to non-capital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing) (lead opn. of O'Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836, 865-866] (Harmelin).) This constitutional principle "forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Ewing, supra, 538 U.S. at p. 23 [155 L.Ed.2d at p. 119], quoting Harmelin, supra, 501 U.S. at p. 1001 [115 L.Ed.2d at p. 869].)
Objective factors guiding the proportionality analysis include "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions." (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650] (Solem).) But only in the rare case where the first factor is satisfied does a reviewing court consider the other two factors. (Harmelin, supra, 501 U.S. at p. 1005 [115 L.Ed.2d at pp. 871-872] (conc. opn. of Kennedy, J.).)
Here, defendant failed to register a residence that was within the prohibited distance from a school; further, he was on parole for a prior 2009 conviction for the same crime when he committed the current offense. Despite these aggravating factors, the trial court imposed the low term of 16 months in prison, plus one year for one prior conviction, dismissing two others. We need only consider the first of the Solem factors to conclude that defendant's relatively short sentence is not grossly disproportionate.*fn4
Abstract Of Judgment
At the sentencing hearing, the trial court imposed a $200 restitution fine and a $200 parole revocation fine, stayed.*fn5 However, neither fine is reflected in the abstract of judgment. We will direct the trial court to correct the abstract of judgment to reflect a $200 restitution fine (§ 1202.4) and a $200 parole revocation fine, stayed pending successful completion of parole (§ 1202.45). (People v. Mitchell (2001) 26 Cal.4th 181, 187.)
Next, although not raised by the parties, our review of the record discloses that the trial court orally purported to "waive" all "other fees, fines and assessments." However, it lacked the authority to waive certain mandatory fees, e.g. court security and facility fees, otherwise known as criminal conviction assessment fees (Gov. Code, § 70373). Additionally, defendant's crime of conviction caused him to be liable for other mandatory fees, fines, and penalty assessments. As the trial court's failure to impose the mandatory fees, fines, and penalty assessments resulted in an unauthorized sentence (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1157; People v. Smith (2001) 24 Cal.4th 849, 852), we will remand to the trial court to identify and impose all appropriate mandatory fees, fines, and assessments.*fn6
The matter is remanded to the trial court for determination and imposition of all appropriate mandatory fees, fines, and assessments, and correction of the abstract of judgment as directed in part V of this opinion.*fn7 In all other respects, the judgment is affirmed. The trial court is directed to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J. ROBIE, J.