IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
THOMAS WALTERMAN DOUGLAS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F06471)
The opinion of the court was delivered by: Hull , Acting P. J.
P. v. Douglas
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Thomas Walterman Douglas of failure to register as a sexual offender within five days of coming into or changing his residence. (Pen. Code, § 290.018, subd. (b); undesignated statutory references that follow are to the Penal Code.) In a bifurcated proceeding, the jury found that defendant had suffered a prior serious felony strike conviction. (§§ 667, subds. (b)-(i), 1170.12.) He was sentenced to state prison for four years. Section 2933 does not entitle defendant to additional conduct credit because he is required to register as a sexual offender. (§ 2933, subd. (e)(3).)
On appeal, defendant contends the trial court erred by instructing the jury with a modified version of CALCRIM No. 1170 that, unlike the pattern version, did not identify the specific address that he was required, but failed, to register. He claims the error was prejudicial because it allowed the jury to convict him on the basis of his admitted knowledge of the duty to register a second residence should he acquire one, even though he had not done so or at least believed he had not done so. We shall affirm the judgment.
FACTS AND PROCEEDINGS
A.N. managed a commercial building in downtown Sacramento that housed professional tenants such as law firms and public relations firms. Tenants cannot use the building for residential purposes; nor can they use areas other than the basement for storage. A.N. inquires of prospective tenants as to their intended use of the rented space.
A.N. met defendant when he sought to lease space in the building. Defendant described himself as a musician and said he wanted a space where he could compose music. When A.N. questioned whether drumming or other music would be appropriate in professional office space, defendant explained that his only instrument would be a keyboard that connects to earphones. He assured her that if there was a noise complaint, he would wait until after 5:00 p.m. or use his earphones all of the time.
After viewing three smaller spaces within his stated price range, defendant opted for a larger space outside that range that had a sink and running water. Defendant told A.N. that at an unspecified time, he had "had an apartment" and also "had lived with his sister," who evidently was "in charge of" his "social security checks." He said he had "a very bad relationship" with the sister and "did not want his sister knowing where he was." Defendant mentioned that he had office space in Vacaville that was not meeting his needs and that he "wanted to get out of that area." Defendant did not mention that he was required to register as a sexual offender. Nor did he mention that he intended to use the space as a storage facility. A.N. would not have allowed the space to be used for that purpose.
After defendant moved into the building, A.N. discovered that he had brought much more than a keyboard and a "few" other items. In the hallway outside his unit, defendant had a dining table and chairs, a desk, and a "ton of stuff." A.N. contacted defendant and told him the belongings had to go. As an interim measure, A.N. allowed defendant to place items from the hallway in a vacant office. A.N. later viewed the interior of defendant's unit and discovered "where that stuff [from the vacant office] had actually gone." A.N. began to suspect that defendant was living in his unit.
A.N. received numerous complaints from staff and other tenants about the hours that defendant was in the building. In one instance Dennis N., a building maintenance worker, escorted a window washer to the space defendant was renting. When Dennis N. received no answer to his knock at defendant's door, Dennis N. used his key to unlock it. When the door was about halfway open, Dennis N. heard a voice say "stop, wait a minute." Before Dennis N. could react, he fully opened the door and saw defendant arising from a mattress on the floor across the room. Seeing nothing to indicate that defendant had been doing anything other than sleeping, Dennis N. formed the impression that he had awakened defendant. Defendant said he did not want anyone in his room, so Dennis N. and the window washer left.
On four or five occasions, manager A.N. had to be in the building between 11:00 p.m. and 4:00 a.m., and evidently defendant was there. On one such occasion, a fire alarm was triggered between 2:30 a.m. and 4:00 a.m. A.N. sent police officers up to look for defendant. He was there.
A.N.'s suspicion that defendant was living in the building was strengthened when she went to his unit and looked around. In addition to the dining table and chairs that had been in the hallway, A.N. saw a mattress and headboard; shoes and clothing; a microwave oven, cake pan, and ice chest; medications, a luffa sponge, a Water Pik and a toothbrush; books, speakers, and musical equipment; laundry detergent, bleach, and a washing machine that connected to a wet/dry vacuum and then to the sink. Based on everything A.N. saw, it was her opinion that defendant lived there.
In August 2009, Sacramento Police Detective Kevin Patton was asked to investigate defendant's registration status. Patton found that defendant was registered in Solano County but not in Sacramento County. Patton explained that, when defendant first registered as a sexual offender, he would have received and signed a form explaining the registration requirements, including the obligation to re-register at any new address within five days before or after moving. The form also instructed that a registrant is required to register in each jurisdiction in which he regularly resides.
Defendant testified that he was aware of the registration requirements and that he had satisfied those requirements since his release from custody in the 1990s. He registered in Vacaville because that is where he lived.
During July and August 2009, defendant and his sister did not enjoy spending time together; nor did he enjoy being at her house. He wanted to move away.
Until July 2009, defendant had rented storage space in Vacaville because there was no room for storage at his sister's residence. He also leased space from a mortgage company in Vacaville where he could work on his music at night. Defendant practiced his music almost every day, from 11:00 p.m. until 5:00 or 6:00 a.m. Defendant never registered the office space as a residence because he did not live there. The Vacaville police did not consider the office to be his residence and told him he did not have to register the office address.
Because defendant could not pursue his live music career in Vacaville, he rented an office in Sacramento. Defendant told A.N. that he needed the space to work on his music and also to store items from the storage facility in Vacaville. A.N. agreed that defendant could work on his music at night and gave him a key that allowed access to the building 24 hours a day.
Defendant admitted that he never registered the Sacramento office because, in his view, he did not reside there. He returned to his Vacaville residence every day and still received mail there.
Defendant also admitted that he had a substantial number of personal items in his Sacramento office. He denied that any maintenance man had seen him getting up from a mattress, because he never used the mattress for sleeping and, in any event, the mattress was not visible to persons entering the office.
Defendant's sister testified for him and confirmed that he lived with her and her daughter in Vacaville. He had lived with her for four or five years since his release from custody. Although she spent every night at her house, she would see defendant approximately three times a week. She knew from the volume of wet towels and dirty dishes he left behind that defendant continued to reside there. Defendant had "lots of stuff" at her house and received mail there.
Defendant contends the trial court erred by instructing the jury with a modified version of CALCRIM No. 1170 that, unlike the pattern version, did not identify the specific address that he was required, but failed, to register. He claims the error was prejudicial because it allowed the jury to convict him on the basis of his admitted knowledge of the duty to register a second residence should he acquire one, even though he had not done so or at least believed he had not done so. We find no prejudicial error.
The trial court instructed the jury with a modified version of CALCRIM No. 1170 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(b). To prove that the defendant is guilty of this crime, the People must prove that:
"One, the defendant was previously convicted of a felony sexual offense requiring him to register as a sex offender pursuant to Penal Code section 290.
"Two, the defendant resided in the County of Sacramento.
"Three, the defendant actually knew he had a duty to register as a sex offender under the Penal Code section 290, wherever he resided, and,
"Four, having that knowledge, the defendant willfully and unlawfully failed to register as a sex offender under Penal Code Section 290 with the police or sheriff of that city or county within five working days of coming into that city or county." (Italics added.)
The court gave a special instruction, "Definition: Residence [Penal Code Section 290]," as follows: "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, house, apartment buildings, motels, hotels, homeless shelter, and recreational and other vehicles."
The court also gave a special instruction, "Persons With More Than One Residence Required to Register in Each Jurisdiction [Penal Code section 290.010]," as follows: "If the person who is registered has more than one residence address at which he or she regularly resides, he or she shall register in each of the jurisdictions in which he or she regularly resides, regardless of the number of days or nights spent there. If all the addresses are within the same jurisdiction, the person shall provide the registering authority with all the addresses where he or she regularly lives."
In contrast to the modified instruction used by the trial court, the pattern version of CALCRIM No. 1170 states as its third element: "3. The defendant actually knew (he/she) had a duty under Penal Code section 290 to register as a sex offender [living at ______((insert specific address or addresses in California))] and that (he/she) had to register within five working days of _____ ((insert triggering event specified in Penal Code section 290(b)))."
"'"'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" [Citations.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) In making this determination, we presume the jurors are "able to understand and correlate instructions . . . . [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, in considering whether the trial court's modification of element three was prejudicial, we consider the entire charge, including element two; and we presume the jurors were able to correlate elements two and three and did not view either element in isolation.
"[T]he question is whether there is a 'reasonable likelihood' that the jury understood the charge as defendant asserts. [Citations.] 'In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.]'" (People v. Kelly (1992) 1 Cal.4th 495, 525-526; see People v. Mayfield (1997) 14 Cal.4th 668, 777.) For reasons we explain, we conclude there is no reasonable likelihood that the jury understood the instruction as defendant asserts.
Elements two and three told the jury that it could not convict defendant unless it found both that he "resided in the County of Sacramento" and that he "actually knew he had a duty to register as a sex offender . . . wherever he resided." (Italics added.) Jurors reading elements two and three together would correlate the broad and indefinite phrase, "wherever he resided," with the narrower and certain phrase, "resided in the County of Sacramento." Thus, jurors who found that defendant resided in Sacramento would have no reason to construe the phrase "wherever he resided" as somehow excluding Sacramento. Defendant's defense was that he believed the Sacramento address was "his place of business rather than a second residence." The modified instruction accommodated defendant's defense, albeit in a more roundabout manner than the pattern instruction. If the jury found that defendant in fact resided in Sacramento, but he mistakenly believed that he did not reside there and only did business there, the jury would have been compelled to conclude, based upon his belief, that defendant did not "actually kn[ow]" of his duty to register at the Sacramento residence. Because defendant would not have known of his duty to register at one of his residences, no reasonable juror could have found that defendant "actually knew" of his duty to register "wherever," i.e., everywhere, he resided. (CALCRIM No. 1170; italics added; People v. Kelly, supra, 1 Cal.4th at pp. 525-526; People v. Mayfield, supra, 14 Cal.4th at p. 777.)
The summations of both counsel reinforce our conclusion that the modified instruction was neither erroneous nor prejudicial. The prosecutor argued that "the real crux of the case" was whether defendant was "residing there" in Sacramento. Defense counsel argued that defendant's "location in Sacramento was not a residence, therefore, he had no duty or obligation to register it." These arguments focused the jury's attention on element two, whether defendant resided in Sacramento. No reasonable juror could read element three to suggest defendant could be convicted based solely upon his knowledge of a duty to register one or more residences outside of Sacramento. Any such suggestion would be patently absurd and unreasonable.
Defendant's reliance on People v. LeCorno (2003) 109 Cal.App.4th 1058 is misplaced. In LeCorno, the trial court "refuse[d] to instruct that [in order to be convicted] defendant must [be proved to] have known that he was required to register in San Mateo" and also gave "supplemental instructions in response to the jury's questions [that] told the jury explicitly, and incorrectly, that it was not necessary for defendant to have believed that he had established a legal residence in San Mateo and was required to register there." (Id. at p. 1068.) Moreover, a law enforcement officer misled the defendant by telling him that his residence was where he spent the most time. (Id. at p. 1063.)
In reversing the defendant's conviction for failure to register, the LeCorno court stated: "It is nonsensical to say that in order to purposefully fail to register, defendant must have knowledge only of an abstract duty to register, but that he need not know what that means or how it applies to his circumstances. If defendant did not know that he had become a resident of San Mateo and therefore was required to register there, it hardly matters that he was aware that there was a duty to register under other circumstances. While defendant admittedly knew there was a duty to register--somewhere--he did register, in San Francisco. Defendant was convicted of failing to register a second time, in San Mateo; what matters is whether he knew he was supposed to register there. '[I]n order to willfully violate section 290 the defendant must actually know of his duty to register.' [Citation.]" (LeCorno, supra, 109 Cal.App.4th at pp. 1068-1069.)
The present case is distinguishable from LeCorno because the trial court did not give any instruction negating the element of knowledge. Rather, the instructions required that defendant reside in Sacramento and know of the duty to register wherever he resided. No reasonable juror would have convicted defendant simply because he lived in Sacramento and knew of the duty to register somewhere else.
We thus reject defendant's argument that the instruction "created at least a reasonable likelihood" that any juror believed the instruction required only knowledge of a duty to register at a second residence in the abstract, should he acquire one, rather than actual knowledge that a second residence has been established.
The judgment is affirmed.
We concur: ROBIE , J. MAURO , J.
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