(Super. Ct. No. 62098436)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Leroy Dale Holsey guilty as charged of failing to update his annual sex offender registration. It further found that he had two strikes and had served three prior prison terms, and that he had previously violated the sex offender registration laws. (Pen. Code, §§ 290.012, subd. (a); 290.018, subd. (b); 667, subds. (b)-(i); 667.5, subd. (b).) The trial court sentenced defendant to prison for 28 years to life. Defendant timely appealed.
Defendant's claims may be grouped as follows: (1) the jury should not have been instructed that "I forgot" was no defense; (2) the trial court mishandled defendant's claim of incompetent counsel; and (3) the trial court should have stricken the strikes, because otherwise the lengthy sentence violates state and federal constitutional norms.
As we will explain, defendant's contentions fail to persuade. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with failing to register as a sex offender within five working days of his birthday. The pattern instruction for that offense sets forth four elements the People must prove, as follows: (1) defendant had been convicted of a sex offense requiring registration; (2) defendant lived at a particular address; (3) defendant knew he had a duty to register within five working days of his birthday; and (4) defendant willfully failed to register. (CALCRIM No. 1170.)
Defendant had been a sex offender registrant for many years, registered many times, and twice before was convicted of registration violations. For tactical reasons, the defense stipulated he had been convicted of a felony sex offense requiring registration, and that he lived at an address on Main Street in Roseville. This left two jury issues, whether or not defendant actually knew he had to register, and whether his failure to do so was willful.*fn1
Defendant was born on March 20, 1965. Roseville police officers Rick Fox and Jude Chabot spoke to him at his Main Street apartment on April 14, 2010. On April 27, 2010, they arrested him. He told the officers he forgot to register and was waiting for the police to send him a reminder notice.
A police department analyst described how the registration records were kept, and testified all registrations are done in person. At every registration, the registrant is advised of the duty to re-register each year within five working days of his (or her) birthday, and the form has a line so stating, which the registrant must initial before signing the form. Defendant had registered four times in Roseville, once as an incoming registrant, once as an annual renewer in 2006, once due to a return to the area, and finally, on April 2, 2009, when he moved to Main Street. Each of the four clerks who assisted defendant to register in Roseville testified and identified the forms he filled out. Two clerks did not remember him. One testified he was coherent and responsive. The last clerk, who registered defendant when he moved to Main Street in 2009, testified she did not recall anything unusual in his behavior or questions.
A Department of Justice analyst identified defendant's statewide registration file, which indicated he did not register after 2009. The file reflected registrations dating back to 1986, and that defendant registered at "CDC," the former California Department of Corrections, on October 13, 2002, registered at Atascadero State Hospital on September 24, 2003, then again registered at CDC on February 13, 2004. Thus, it shows defendant was in the hospital for a period of about five months; this five-month period was seven years before the instant offense.
Defendant was convicted in 2002 of failing to register, and the jury was instructed this fact could be used to show he knew of his duty to register.
Defendant presented no evidence.
The People argued defendant knew he had a duty to register because he had a prior conviction for failing to register, and had registered many times in the past, including three times as annual renewals after his birthday, and that he had initialed and signed multiple forms reflecting this duty. Willfulness was shown because he knew he had to register, was able to register, but failed to register, and a person cannot "just sit back, not register, and simply claim that it wasn't willful." "[F]orgetting is simply not a defense."
Defense counsel effectively conceded defendant had knowledge of the registration requirement, and in fact emphasized that he had a history of registering, but also pointed to evidence in the exhibits showing defendant had spent time in Atascadero State Hospital, and argued there was a reasonable doubt about whether the fact he did not register this time was willful, or due to a mental health problem leading him to forget, as defendant had told the officers.
When the prosecutor began to counter the defense argument by pointing out the lack of evidence of defendant's mental problems, defense counsel objected.
Outside the presence of the jury, the court overruled the objection, stating "you did argue to the jury that or infer that your client has mental health issues, yet you didn't present any evidence of that for the jury. So I feel that the People can comment on the fact that the defendant never . . . produced any evidence to demonstrate any mental health issues."
When rebuttal resumed, the prosecutor emphasized the meager evidence of mental health issues, consisting of the fact that about seven years ago defendant was in a state hospital, and emphasized that defendant did not act crazily when questioned by the police, but instead claimed he simply forgot. The prosecutor did not argue evidence of a mental problem could never negate willfulness or actual knowledge.
Defendant contends the trial court should not have instructed the jury that "I forgot" was not a defense, and separately contends his trial attorney was incompetent for not understanding the defense and not mustering evidence to support it.
We find no error on this record. On these facts, "I forgot" was not a defense. Further, the record on appeal does not support the claim that trial counsel was ignorant of the scope of such a defense, nor does the record show other evidence supporting such a defense exists.
Defense counsel filed an extensive pretrial Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), discussed in Part III, post. In seeking to persuade the court not to defer the ruling, defense counsel argued "a jury trial is a complete and total waste of time" because "the odds are pretty substantial" defendant would ...