(Super. Ct. No. 09F04235)
The opinion of the court was delivered by: Nicholson , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Gregory Marcus Merritt, a sex offender who was required to register any change in his residence address with a local law enforcement agency within five working days of making the change (Pen. Code, § 290, subd. (b)),*fn1 was convicted by a jury of failure to so register (§§ 290.013, subd. (a), 290.018, subd. (b)). He was sentenced to five years in state prison.*fn2
On appeal, defendant contends the trial court erred when it (1) denied his request for a mistake of fact instruction, the mistake being that his moving from the residence for which he had last registered into an automobile in a parking lot across an alley from that residence was not a change of address; and (2) failed to instruct the jury with the definition of "residence" as provided in section 290.011, subdivision (g). We conclude that under the circumstances of this case defendant was not entitled to a mistake of fact defense, and that any error in instructing the jury on the definition of residence was harmless.
Defendant is a convicted sex offender who is required to register the address of his residence with a local police agency. Defendant last registered his address on August 20, 2008, as 477 1/2 El Camino Avenue, Sacramento (hereafter the El Camino residence). The El Camino residence is located on Sacramento County Assessors parcel No. 32. Parcel No. 32 is a rectangular piece of land, fronting on El Camino Ave and extending back to an alley. Parcel No. 32 has two structures on it -- the primary structure which fronts on El Camino Avenue and contains spaces for small businesses, each bearing a separate address, and the El Camino residence that backs up to an alley, across from which is a parking lot. The parking lot is on parcel No. 1.
On May 28, 2009, Detective Kevin Patton went to the El Camino residence to determine if defendant was living there. He was not, instead the El Camino residence was now occupied by Placido Martinez and his family.
Placido Martinez, a security supervisor, testified that he and his family moved into the El Camino residence on May 1, 2009. Martinez's only contact with defendant was when he saw and spoke to him at a nearby Kentucky Fried Chicken restaurant. Martinez had never seen defendant around Martinez's residence or sleeping in a vehicle in the parking lot.
Phu Nguyen testified that starting in August 2008, he was working six days a week, from 8:30 a.m. to 7:00 p.m., at a barbershop located on parcel No. 32. Nguyen was acquainted with defendant and knew he had lived at the El Camino residence. Nguyen also knew defendant had moved from that residence on April 9, 2009. In early May 2009, Nguyen saw defendant picking up mail from defendant's mailbox, which was located on front of the main building on parcel No. 32. Nguyen never saw defendant sleeping in an automobile in the parking lot across the alley.
Defendant's girlfriend, Karen Smith, testified she and defendant moved into the El Camino residence in July 2006 and were evicted therefrom in April 2009. While Smith and defendant were living at the El Camino residence, the owner of the property asked them to keep the parking lot clear of debris that people would dump there. The request, with which Smith and defendant complied, led them to believe the parking lot was owned by the same person who owned the El Camino residence.
After Smith and defendant were evicted they were unsuccessful in their search for new accommodations and began sleeping in Smith's automobile, a small white older Toyota which "barely" ran, in the parking lot across the alley from the El Camino residence. Although Smith and defendant were not always together and she slept in other locations, when she wanted to find defendant she would ...