Trial Court: Santa Clara County Superior Court No.: BB622224 Trial Judge: The Honorable Thang Nguyen Barrett
The opinion of the court was delivered by: Walsh, J.*fn5
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. BB622224)
Defendant was required to register as a sex offender under California law. He did so. Later he changed residences, first within California and later out of state, without registering any of his new addresses. Defendant was charged with violation of his duty to properly register as a sex offender under both federal law (18 U.S.C. § 2250) and state law (former Pen. Code, § 290, subd. (f)(1)(A), now § 290.013)*fn1 .
In this case, we consider whether, under California double jeopardy principles, defendant's prosecution in federal court for failing to register as a sex offender after travelling in interstate commerce bars subsequent prosecution in state court for failing to register his new California address as a sex offender before he moved out of state. We conclude that defendant's prosecution in state court did not violate California double jeopardy prohibitions because the state and federal prosecutions punished separate acts of failing to register and because the conduct at issue in the state court action occurred before defendant travelled in interstate commerce and before the effective date of the federal statute.
BRIEF STATEMENT OF THE CASE
Defendant Christopher Anthony Davis was convicted by plea of one count of failing to update his sex offender registration within five working days of changing his residence address (former § 290, subd. (f)(1)(A), now section 290.013). He also admitted enhancement allegations that he had been convicted of one prior serious felony for the purposes of the "Three Strikes" law (§§ 667, subds. (b)-(i); 1170.12). His prior offense was a conviction for lewd or lascivious conduct with a child under the age of 14 (§ 288, subd. (a)), the offense that required him to register as a sex offender. The court granted defendant's Romero*fn2 motion, struck the strike prior, and sentenced defendant to 16 months in prison. In light of his custody credits, the sentence was deemed served.
On appeal, defendant contends that the court erred when it denied his motion to dismiss the complaint. In that motion, defendant argued that prosecution for failure to update his registration as a sex offender was barred on double jeopardy grounds because he had already been convicted of failure to register as a sex offender (18 U.S.C. § 2250) in federal court based on the same wrongful conduct. In light of our holding, we will affirm the judgment.
FACTS*fn3 AND PROCEDURAL HISTORY
Defendant was born and raised in Missouri. He came to California in the fall of 2003 at age 17 to attend Stanford University.
I. Underlying Sex Offense
While visiting his extended family in Southern California over the Thanksgiving holiday in 2003, defendant engaged in lewd or lascivious conduct with his 13-year-old, male cousin (Victim). The alleged conduct occurred over the course of two days and included kissing and "dry-hump[ing]" Victim, touching Victim's buttocks and penis under his pajama pants, masturbating Victim's penis, and instructing Victim to put lotion on his (Victim's) hands and stroke defendant's penis.
Defendant was charged with four counts of lewd or lascivious conduct with a child under the age of 14 (§ 288, subd. (a)). In March 2004, he was convicted of one count of lewd or lascivious conduct and the other counts were dismissed. The court granted five years' probation, on the condition that defendant serve 90 days in jail. The court also ordered defendant to register as a sex offender pursuant to former section 290, now sections 290 to 290.023.
II. Failure to Register as Sex Offender in 2006
Upon his release from jail, defendant returned to Stanford University. He registered with the Stanford Department of Public Safety in December 2004.
In January 2006, defendant moved into private, dormitory-style housing off campus (the House). Though he moved in with 12 other Stanford students, he felt disconnected from campus life because he was no longer permitted to live on campus. On January 27, 2006, defendant registered with the Palo Alto Police Department. When he registered with the Palo Alto Police Department, Officer Zach Perron read defendant each of his registration requirements and verified that defendant understood each of the requirements by having him initial each on a form.
On June 15, 2006, around the time Stanford's spring quarter ended, members of the Palo Alto Police Department conducted a routine compliance check on sex offender registrants and discovered that defendant was no longer living at the House. The landlord reported that defendant moved in at the end of January 2006, that defendant never paid rent, and that the landlord initiated eviction proceedings against defendant in early May 2006 and boxed up his belongings in early June 2006. The other residents of the House reported that they rarely saw defendant there, that they had not seen him for at least one month, and that defendant was staying with friends in dorm rooms on campus. On June 15, 2006, defendant called one of the investigating officers and stated that he still lived at the House and that his landlord must be mistaken.
On June 26, 2006, defendant sent the investigating officer an e-mail in which he stated that he would be in the Los Angeles area at an alternate address he had previously registered, that he planned to go home to Missouri for the summer, and that he would no longer be at the House. Subsequently, officers were unable to locate defendant at the alternate address in the Los Angeles area. Defendant's uncle who lived at that address said defendant was not living there, he had not seen defendant in months, and did not know where defendant was. The officers also determined that defendant had not registered in Missouri.
On August 16, 2006, the prosecution filed the instant complaint in Santa Clara County Superior Court alleging two felony counts: (1) failure to register multiple addresses (former § 290, subd. (a)(1)(B), now section 290.010) and (2) failure to inform law enforcement of a change in address (former § 290, subd. (f)(1)(A), now section 290.013). Both offenses were alleged to have occurred on or about June 20, 2006. In August 2006, the court issued a warrant for defendant's arrest.
III. Defendant Traveled Out of State
Defendant did not return to Stanford in the fall of 2006. In his statement to law enforcement in June 2009, defendant said he left California in September 2006 and travelled to New York City, where he obtained employment at a hostel. (From this statement, we infer that he did not return to Missouri that summer.) Defendant remained in New York until March 2008, when he moved to Miami, Florida to work for the same hostel company. Defendant lived in Miami until September 2008, and then returned to New York. Between September 2008 and June 2009, defendant lived at three different addresses in New York City and worked for two different hostel companies. He did not register as a sex offender in either New York or Florida.
IV. Federal Court Proceedings
In the spring of 2009, the U.S. Marshals Service began investigating defendant's failure to register. On May 27, 2009, the federal prosecutor filed a criminal complaint in the district court for the Northern District of California alleging that between June 2006 and June 2009 defendant was required to register under the federal Sex Offender Registration and Notification Act (SORNA), had travelled in interstate commerce, and had failed to register or update his registration as required by SORNA in violation of 18 United States Code section 2250. The court issued a ...