(Super. Ct. No. 10F01153)
The opinion of the court was delivered by: Duarte, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, ...