*1 Aug. S115438. [No. 2004.] PEOPLE,
THE Plaintiff and Respondent, BARKER,
DONALD Defendant and Appellant.
Counsel Court, Such, and for Defendant under Supreme Richard appointment Appellant. Defender, Funk, Public Defenders Public for California
Jack Assistant Curiae on behalf Defendant Appellant. Association as Amicus General, Medeiros, General, M. State Manuel Solicitor Bill Lockyer, Attorney Bass, General, A. Anderson, Ronald Attorney Robert R. Chief Assistant General, Graves, A. Rene Attorneys Jo Assistant Mary Gerald A. Engler Sullivan, Niver, and Janet E. Chacon, E. Stan Cross Laurence K. Ronald General, for Plaintiff and Respondent. Neeley, Attorneys Deputy Opinion must, working days offender within five
BROWN, A sex registered J. *4 Code, 290, (Pen. or her registration. his birthday, update § of offender’s is a felony. failure to one’s (a)(1)(D).)1 registration Willful update subd. 290, by The 290(g)(2).) question section (§ (g)(2), presented subd. hereafter negated by the offense be may whether the element of this case is willfulness it not be. just may We conclude forgetting register. Background Factual Procedural narrow, briefly facts stated. before us is Because issue of because sex offender. He was registered Defendant convictions; His was convicted of victims attempted rape. two he also rape 73, they so were severely of He beat them were and 84 years age. days. critical three was in condition hospitalized; 84-year-old his obligation update birthday triggered understood his Defendant on forms he and dated boxes signed In registration. offense, this before he committed this Seven months obligation. that recited this form he form. On signed registration sex offender again defendant registration obligations, of his various advising statements him initialed 15 must, working days within 5 annually, statement: “I following including over having jurisdiction the law enforcement go agency of my birthday, name, and registration, residence and update my location or of my place registration.” vehicle indicated. statutory are the Penal Code unless otherwise references Subsequent
Nevertheless, failed, admission, defendant his own update his within five his registration working days birthday, of (a)(1)(C) (now (a)(1)(D)). section former subd. When he subdivision arrested, defendant he had not initialed the advise- acknowledged ments his also that he had read and regarding registration obligations, them. he why remembered Asked had failed to within update his registration defendant I’m in I’m a grace period, responded, a program, “[B]ecause further, house manager,” me all the time.” he job “keeps busy Pressed said, “Well, what, it, know I you totally about I’m not to make forgot going no excuses.” Asked whether it up say was safe his annual mind,” “[kjind answered, obligation had of just skipped [his] “Yes.”
Defense counsel summed his up argument of the case to the theory is a him jury: “This man that to do the law what to do. requires Period.” Counsel added: “He has history registration. of ... It’s in the instance, evidence. Look at it. This is that does guy this forgot.”
A jury convicted defendant of one count section violating 290(g)(2), based on his failure to within five working of his days (see subd. birthday (a)(1)(C), former subd. (a)(1)(D)). § now him a second acquitted count which violating 290(g)(2), count he had failed alleged within five days his residence changing (§ (a)(1)(A)). trial,
After denying motion for a defendant’s new trial court dismissed *5 all but of one his 10 strike convictions in the of prior interests justice to section pursuant 1385. It then sentenced to state for a total appellant prison term 1, of nine years as follows: the of three term on count upper years doubled under the three strikes law to six years, three consecutive plus 667.5, terms as to the one-year terms prior prison charged to section pursuant (b). subdivision The trial court observed that “even a technical violation of the registration by man with is a requirements defendant’s record very strikes, serious matter. . . . And with 10 nine of which the prior are for sort of which, view, conduct in my should have him a life when he gotten sentence it, time, did but the laws were not available to that at that ... a accomplish man with that record has to be careful the very to all laws and comply shouldn’t on the probably sidewalk.” spit sum,
The Court of the affirmed “In we that Appeal judgment. hold simply 290, not a to a is defense forgetting charge violating of section and that he the present claim lacked willfulness to necessary [defendant’s] the registration updat- offense because annual forgot commit charged reason, that court did not err in For trial ing is meritless. does not by that itself instructing ‘forgetting register provide a correct to a of willful failure The instruction was register.’ defense charge law; mandatory statement of the forgetting registration requirement of willfully defense to legitimate charge simply all once duty registrants, they Section imposes upon to remember register, have received and understood advisement duty and do intended Legislature that We not believe the obligation. legal fulfill T duty that evade this that successfully by claiming totally a defendant could ” about it.’ We affirm the of the Court of Appeal. judgment
Discussion in forth by which this arises set statutory context question 1998, 1996, in and and in effect Court of “As amended Appeal. 1999, time section 290 August provided pertinent appellant registered offense ‘for convicted of enumerated sex every person required part . his . in . . . California ... . . residing the rest of . . life while into, his . . . residence or coming five or working days changing within within, he . . . or and ... which city, county, city county location any 290, (§ (a)(1)(A), by as amended Stats. resides.’ former subd. temporarily 3.5; 909, 3; 1997, 821, 1996, 2; 1997, 821, ch. ch. Stats. ch. Stats. § § § addition, 1.1; §290, (a)(1)(A).) In ch. subd. Stats. see present § following change on . . . birthday his first ‘[beginning address, within five working be register annually, shall , . . . . . . . including, his . . days birthday, location, address, as . . a form may . name verifying temporary (§ (a)(1)(C), former subd. of Justice.’ Department 1.1; Stats. ch. see ch. 3.5 and § amended Stats. § because of (a)(1)(D).) A person required present § ‘is guilty the registration provisions conviction who violates’ ‘willfully felony *6 the state for 16 by a in punished prison shall felony imprisonment 290, months, (§ amended (g)(2), two three former subd. as years.’ or or 2.7; 290, (g)(2).)” ch. now subd. present Stats. see § § (Cox) v. Cox 1371 (2002) Cal.Rptr.2d 94 Cal.App.4th People 123] [115 to register the whether just forgetting was first case to address question the held, “Once Cox 290(g)(2). the willfulness may negate requirement a or she is made aware of the person registration responsibility, defend on the that the his or her mind.” basis requirement simply ‘slipped’ (Cox, 1377.) at p. conclusion, this court found our v. reaching Cox decision People (2001) (Garcia)
Garcia
We with the agreed Garcia. “In a case like act, a involving we believe section the defendant requires failure actually know of to act. Both and under the duty today version applicable defendant, a sex offender is guilty felony if he violates’ ‘willfully (§ notification of section former 290. provisions 4393; 2.7, amended (g)(3), as Stats. ch. p. § § present subd. The word (g)(3).) ‘willfully’ implies willingness’ ‘purpose to make the (§ 7.) omission. one cannot fail Logically purposefully without perform act act is knowing what to be As performed. stated in People Honig Cal.App.4th 555], ‘the term . . . “willfully” that “the knows imports requirement what he is doing.” Consistent with that and in requirement, [Citation.] cases, held appropriate knowledge has been to be a concomitant of willful ness. a violation of section 290 Accordingly, [Fn. omitted.]’ requires actual of the A knowledge duty register. jury may infer from knowledge notice, but notice alone does not necessarily satisfy willfulness require (Garcia, concluded, however, ment.” 752.) Cal.4th at We potentially misleading instructions to the actual given regard knowledge were beyond harmless reasonable doubt because there was evidence the defendant did strong know of actually (Id. requirements.
The Cox court found Garcia on the “We following grounds: distinguishable conclude there ais fundamental difference between claim that he did Garcia’s not know he claim that he appellant’s view, conceded Forgetting presupposes knowledge. our Appellant, that he had actual Human registration requirement. beings store in their time brains of facts. At vast myriad any given *7 cue to them to conscious bring those facts are for some storage waiting a wedding anniversary, A a a medical recognition. may forget patient spouse knowledge arise from lack of actual but such not appointment; lapses books, and failure cues. calendars keep to to Persons respond appointment of and and tie around strings ask others to remind them duties obligations We all to are met. conclude responsibilities their insure fingers important to when of actual that within this context one fails willfully register possessed (Cox, supra, do of the he or she so.” forgets 1376.) at Cal.App.4th p. observed, the Cox “that cannot be things,”
“There are some court simply (Cox, supra, 94 Cal.App.4th 1377.) think it incon- “We is forgotten.” the ceivable the could have intended otherwise. Because Legisla- Legislature the at all times the whereabouts ture believed it is essential authorities know offenses, it has of those have been convicted of sex created committing who (See Wright Court Superior and scheme. rigorous registration demanding 101].)” (Cox, 322, (1997) 15 Cal.4th 527-528 936 P.2d 1376.) at p. observed,
As the Cox court strict demands “places the scheme (Cox, also on state local registrants agencies.” “A convicted of crime is Cal.App.4th qualifying A (§ (a)(1)(A).) for the of his life. subd. rest required is his registration with no residence address registrant required A (§ (a)(1)(B).) subd. every registrant 90 days. required (§ (a)(1)(C).) five subd. within of annually working days birthday. the working agency He within five with days register police must (§ (a)(1)(A).) subd. He must location where has taken residence. up which he last within five the working days notify police agency three days of address. The must within registered any agency change Justice, in turn must the notify notify jurisdiction which Department A (f)(1).) subd. must moving. (§ registrant notify which the registrant in which he resides of any within of the location days agency five police (§ of Justice. name and it must so change notify Department (c), all (b)(1), (2), (f)(2).) requires Section subdivisions [][] informed of their on release from confinement registrants probation The official who registration require- registration requirements. explains indicating a form Justice Department ment must sign required by the address The official is obtain notification has been given. it of Justice to reside and registrant report Department where the plans If convic- for that location. the qualifying agency responsible police later must be made not than the notification felony, tion was for confinement, have When changes release from registrant’s [f] before days *8 been made in registration the requirements, Legislature has made provision registrants be so informed. The Legislature has that the provided failure to receive such notification is a defense to failure to charged with (1)(1).)” (Cox, (See, the new comply requirement. e.g., at § 1376-1377.) pp.
“In the face of such rigorous notification and registration requirements,” the Cox court concluded, “it is unreasonable to believe ... the Legislature intended that a mere would excuse a failure lapse memory to register. There are some that simply things cannot be To forgotten. allow forgetfulness serve, to excuse a failure context, would register, in this as an incentive not (Cox, to remember.” supra, Cal.App.4th case,
In this the Court of was divided. The Appeal court Cox. with agreed are of the that—as a matter law—of opinion “[W]e itself, forgetting, by does not negate willfulness for of a purposes charge violating registration updating of section . . 290. . Section [f] imposes statutory obligation to and reregister certain times and under enumerated conditions. As is the case with any legal obligation, inherent in that statutory mandate is the not to duty it. In forget perform contrast to the kind of subjective ‘forgetfulness’ defense argued by appellant here, under the statutory definition of found at ‘willfully’ section subdivi- sion an omission to act would not be ‘willful’ if objective circumstances beyond defendant’s control him prevented from acting. For example, debilitating injury, illness mental infirmity might objectively prevent fashion, from in registering timely thereby rendering ‘unwillful’ the defendant’s failure to with the compliance strict time deadlines of section and providing defense whether or not the defendant had also simply forgotten his obligation however, Mere forgetfulness, does not rise to the level of such an objective circumstance preventing compliance with the statute. Whether the obligation has simply slipped individual’s irrelevant, mind is essentially because he was at all times not to let obliged Without an happen. objective circumstance preventing compliance the statutory obligation, a mere subjective failure to remember to do so therefore remains ‘willful.’ (Fn. omitted.) [Citations.]”
The dissenting below justice “The conclusion reached in Cox objected: effect, reaffirmed here—in that a defendant is deemed to know whatever he once knew—is inconsistent with both language reasoning Garcia. Garcia Court Supreme concluded that ‘the court’s instructions that, “willfulness” should have required proof addition to being notified formally officers as appropriate required by order to violate willfully section 290 the defendant must know actually of his register.’ (Garcia, duty Cal.4th at added.) italics ‘know,’ ‘have in the court’s analysis court said not ‘knew’ or known.’ Implicit at the time he was is that the defendant must have necessary knowledge at some time in register—not failed past.” *9 the read too into the fact that we used The below much dissenting justice Garcia, the know in In we were not considering tense Garcia. present here, a does not stand for and it is axiomatic that decision presented question (1989) 47 a not the court v. Harris Cal.3d by (People considered proposition Moreover, 619]). tíre 767 P.2d Cal.Rptr. majority 1071 [255 out, different not below is from “Forgetting fundamentally pointed something knowing thing.” under is “Although knowledge below explained: willfulness, a not the fact does forgetting negate preexisting the of forgetfulness requires thereof. To the
knowledge contrary, preexistence already one one knows knowledge, forget something since cannot unless the knowledge . . . of is Because of knowledge it. The opposite ignorance. of as defined necessary element the crime the law must be a ignorance section subdivision in this instance of (g), However, of under section defense 290. charge ignorance. nor a form of knowledge, is neither a loss forgetfulness or immedi Although temporarily momentarily negate forgetfulness may time, one undertake action at a it does given ate awareness that must a given If alter that such action is knowledge required. or affect underlying knows, reminder is someone he or she already simple forgets something Thus, to awareness. knowledge sufficient restore generally preexisting one that one even if has a obligation, temporary lapse one know has is due to be thereof at the moment obligation in awareness particular instance, contrast, does not in the first if one know something performed. it to until actual no amount of will awareness reminding bring the fact is imparted.” below, the it
Contrary dissenting justice legislative to the reading whether 290(g)(2) casts little history light question be negated by just forgetting willfulness element of the offense may nature, intended “regulatory accomplish govern- Section v. certain acts.” (Wright Superior ment’s affirmative objective by mandating Court, added In Morissette 15 Cal.4th at italics (Wright).) 240], S.Ct. 255-256 L.Ed. States U.S. United in the nature of offenses “are not court that many regulatory high explained dealt, invasions, the common law so often or with which aggressions positive care, but are in the nature of where the neglect law or inaction where requires it imposes duty. violations of such result in no direct or Many regulations immediate injury create the property merely danger of it minimize. probability which the law seeks to . . . [Legislation applicable offenses, to such aas matter of does not intent as a policy, specify necessary accused, violation, element. The if he does not will the is in a usually position it with no more care than prevent society might reasonably no expect more exertion that it might extract from one reasonably who has assumed his Also, small, responsibilities. are penalties commonly and conviction relatively does grave to an damage offender’s [no] reputation.” failure
Initially, as a sex offender was clearly regulatory offense within the Morissette definition. When section 290 was enacted in violations were misdemeanors with no element of intent. (Stats. *10 1124, 1, ch. 2563 p. [“Any § to under the person required register provisions of this section who shall violate of the any thereof of provisions guilty misdemeanor”].) 290,
A decade after the enactment of section the United States Supreme Court considered a due to another process challenge ordinance—a Los ordinance Angeles requiring of felons—that did not (Lambert willfulness for require its violation. 355 U.S. California 225, 228, 227 (Lambert).) L.Ed.2d 78 S.Ct. The court held that high 240] “actual knowledge of the duty to of the register of such proof probability and knowledge failure to subsequent are comply necessary before a convic- tion under the ordinance can (Id. 229.) stand.” at p. 1979,
In two decades after the Lambert decision, a willfulness element was for first time introduced into section All 290. failures to remained register However, misdemeanors. convicted of sex person offenses who specified “willfully” violated the statute was to at least in spend days 90 290, (§ 1979, county jail. (f), 944, 8, former subd. as amended Stats. ch. by § introduced, 3256.)2 As p. this had no element of provision willfulness. “Any under the register provisions this section who shall violate of the any thereof misdemeanor and shall be provisions of a guilty sentenced to serve a term not less than days 90 nor more than one in year the county jail.” (Legis. (1979-1980 Counsel’s Sen. Bill Dig., No. 13 Reg. Sess.) 4, as introduced Dec. 1978.) The bill was amended seven times before 2 1989, willfully In register felony became a prior if offender had two register. convictions for failure register All other failures to under section remained 290 290, (§ (2), misdemeanors. (g)(1), former subd. by as amended Stats. ch. § 6194-6195.) pp. only (§ Since punishable. (g)(1), willful violations have been 2.7, by 4393.) as amended Stats. p. ch. § element added. Counsel’s Sen. Bill No. 13 Dig., the willfulness was (Legis. Sess.) (1979-1980 amended Reg. Aug. as to, revealed, nor research
The have not drawn our attention has our parties in the element why willfulness any explanation legislative history Lambert, however, for was added in the amendment. basis provides The amendment least 90 provided greater speculation. penalty—at failure least one days county jail probation year—for Lambert, those convicted of sex offenses. by light specified have concluded that a conviction Legislature greater carrying penalty if, Lambert, (or should) “actual knowledge would stand words of of the duty knowledge of such probability proof (Lambert, 229) were failure U.S. subsequent comply” supra, The have added the element because it shown. willfulness Legislature may reasoned, as we later reasoned in that is concomitant 752). (Garcia, willfulness 25 Cal.4th at history, This is but it has at least some basis. The speculation, legislative silent on the willfulness element being completely question why amendment, for the added no basis whatsoever assertion provides that the made defendant—that the in 1979 intended willfulness Legislature that might negated just forgot element an offender by proof below finds the fact dissenting justice significance subsequent *11 to amend section to delete the willfulness element were 290 attempts However, bills, intent, have as evidence of legislative unsuccessful. unpassed Inc. v. & Com. (Dyna-Med, Employment Housing little if value. Fair any 1379, 67, 1323].) 43 743 P.2d (1987) Cal.3d 1396 Cal.Rptr. [241 also in the fact that federal significance below found dissenting justice law, law, law tax and selective service immigration recognize income the mere failure criminally difference between a statute “significant punishing defense, act, as to which no legally required forgetting perform provides so, greater and the willful failure do which penalty typically the failure reflects a decision not which is not made out unless conscious 290, However, it we section Wright, interpreting comply.” explained from different resort to case law “a arising is not particularly helpful a different a different evil enacted scheme substantive statutory addressing 530.) 15 Cal.4th body.” (Wright, supra, legislative know that a cannot be said to Admittedly, argument reason, it, have a for whatever does forgotten if he or she has something However, below: It we with Cox and the agree plausibility. superficial
357 inconceivable the intended to be a simply Legislature just forgetting sufficient excuse for with section 290’s comply require- ments.
“Our role in a statute is to ascertain the construing Legislature’s intent so as to effectuate the (1997) law. v. Snook 16 purpose (People 1210, 615, Cal.4th 1215 808].)” (Hunt P.2d v. Cal.Rptr.2d 947 Superior [69 984, (1999) 236, Court 21 Cal.4th 1000 705].) 987 P.2d Cal.Rptr.2d [90 end, we must the construction that is most consistent adopt apparent legislative and avoids purpose (In absurd re J. W. consequences. (2002) 200, 897, 29 Cal.4th 363]; 57 P.3d Torres v. Cal.Rptr.2d [126 Service, (2001) Parkhouse Tire Inc. 26 Cal.4th Cal.Rptr.2d [111 57]; P.3d (2000) v. Rubalcava 23 Cal.4th People 328 [96 52].) 1 P.3d Cal.Rptr.2d
“The
of section
is to
purpose
assure that
convicted of the
persons
crimes enumerated therein shall be
available for
readily
surveillance at
police
all times because the
deemed them
Legislature
to commit
likely
similar
offenses in the
(Barrows
future.
(1970)
Court
Municipal
[Citation.]”
accord,
Cal.3d
483];
825-826
464 P.2d
Cal.Rptr.
Wright, supra,
527;
“To this
conviction,
convicted sex offender must
but whenever
into
‘coming
any city,
county,
city
county which he or
she
resides or is
temporarily
....’(§
domiciled
(a).)
Supplemental
address change information
law enforcement
helps
track of sex
agencies keep
offenders who move within the same city or
or are
county
transient. In large
cities such as
Bernardino,
Los
Angeles
huge counties like San
where
offenders can
relocate
easily
without
290(f)
reregistering,
seeks
them
prevent
from
from the
disappearing
rolls.
offenders are
Ensuring
*12
available for
‘readily
(Barrows
Court,
surveillance’
police
v. Municipal
In Wright, we noted with an observation made the district approval in that attorney case: offenders often have a transitory lifestyle “[S]ex to their deliberately movements secret. attempt keep Requiring prosecutor that individu- when the moved—information within uniquely to prove hinder or even foreclose knowledge many prosecu- al’s and control—would 290(f).” 529.) Predictably, tions under section Cal.4th (Wright, supra, to offender charged were we defendant’s sex every accept position, to claim have to do so. Defendant makes forgotten failure would to this would entail for the asserting burden light prosecution, would be able to circumstantial evidence of the improb- prosecution present Proving failure to to reminders.” forgot, offender such as ability “respond her registration a sex failed to his or within the update grace period offender a matter of evidence. On enough, documentary is straightforward largely hand, an the registration obligation other whether offender was reminded of information, failed to to the like as and reminders information respond moved, and an offender within that individual’s when “uniquely associates, 529). and (Wright, control” sex offender’s Identifying had failed then their that the offender testimony attempting prove through reminders, altogether be a burden of an different would respond hereto- character than the has incalculably greater magnitude prosecution burden, believe, cannot fore been such we shoulder. Imposing have been the intent. can vigorous Legislature’s “Impeding prosecution scofflaws, ‘the in further violations and encourage resulting compounding section Legislature] substantive evil sought [through prevent.’ 290] [the (Id. 529.) at p. [Citation.]” conclude excuses of the sort summary, given we that countenancing effec- his “would just forgot registration obligation he about as just surely characterizing ‘eviscerate’ the statute” as violation
tively have it. (Wright, supra, as an offense would eviscerated statute instantaneous Cal.4th at p. We the limits of our do not here an holding. express opinion We emphasize from, whether acute resulting psychologi- forgetfulness example, to. condition, memory negate cal or a chronic or intelligence might deficit of for a violation.3 willfulness section 290 errors several instructional defendant contends the trial made Finally, judge registration; claim that regarding “[Defendant] noted, below, dictum, “In to the kind previously opined: contrast As here, argued statutory definition of subjective ‘forgetfulness’ by appellant defense under the if would be ‘willful’ ‘willfully’ found an omission to act at section subdivision acting. For beyond the him from objective prevented circumstances defendant’s control prevent infirmity might objectively a defendant debilitating injury, illness mental example, fashion, thereby rendering failure registering timely ‘unwillful’ defendant’s from providing a defense compliance strict deadlines of with the time *13 forgotten obligation [Fn. had his simply or not the defendant also whether omitted.]”
denied his under the United States and California rights Constitutions to law, trial, due and to process jury defense present (a) combination of the court’s failure to instruct as to the ‘knowledge’ 290, (b) element of violation of section the court’s instruction to the effect excuse,’ that (c) of the law is not an and ‘ignorance the court’s informing that jury is not a defense to violation of ‘forgetting’ section 290.”
This case was tried in before we issued our year opinion Therefore, Garcia. instructed, the jury was not as we held in Garcia a jury instructed, trying alleged 290 violation should be that willful actual failure to (Garcia, requires duty However, 752). Cal.4th at as it was in this instructional (Id. error here was harmless beyond reasonable doubt.
record reflects that defendant amply knew of his actually duty his update registration Moreover, within five working days his birthday. trying case to the defense jury, counsel effectively conceded the point, arguing, instead, that defendant had simply forgotten his registration. update stated,
As previously the record demonstrates defendant was not only of his annual registration actually knew obligation, also what notified 1996, 1997, obligation was. In and defendant signed and dated boxes on forms that recited this Seven obligation. months before he committed this offense, defendant again signed a sex offender form. registration On this form he initialed 15 statements him of advising his various registration obligations, including must, following statement: “I within 5 annually, working days of my birthday, to the go law enforcement agency having jurisdiction over location my name, of residence place update my registration, vehicle registration.” offense, When he was arrested for this defendant he had acknowledged initialed these advisements but that also he had them, read and remembered although only Asked he had “vaguely.” why failed to within defendant grace period, responded, I’m in a I’m a house program, manager,” job “[BJecause me “keeps further, said, “Well, what, all the time.” busy Pressed know I you totally it, forgot about I’m not to make going no excuses.” Asked whether it was up safe to his annual say had obligation of just skipped “[k]ind [his] mind,” answered, “Yes.”
Defense counsel tried this case to the on the that defendant theory register, not that he did not know of the actually “What obligation. did Well, he tell the That he It police? forgot. his mind. slipped you know what, I about totally forgot it. I’m not to make going no excuses. I was up I’m a busy. house I’m in the manager. To find program, Don Barker not [f] *14 360 elabo- counsel obviously you need that statement.” Defense
guilty accept think, know one would how the heck argument: rated on this “I automatically comes an thing. day. can such an And it on you forget up important important Barker, it’s 5th. It’s birthday, For Don a landmark It’s March his 50th day. [f] issues, He’s his substance The answer I’ve focused on his just given you. abuse, treatment, his new duties a house It It manager. happens. that’s here. This not a who’s the run. This is not a in guy guy happened the law him to do. This is man that do what hiding. requires at it. “He has a of ... It’s in evidence. Look registration. Period.” history instance, this forgot.” is a that does he guy register. This second, We turn to defendant’s related claim instructional error. In Garcia, in an law is no ‘ignorance we held trial court “erred giving (CALJIC 4.36), excuse’ instruction No. which on its face would allow defendant of even if he were unaware of failing to convict (Garcia, 25 4.36 supra, 754.) to do so.” at CALJIC No. Cal.4th obligation p. However, was not here. contends an that was instruction given no No. also of the law is given—CALJIC ‘ignorance 3.30—was “clearly instruction, ain case.” excuse’ inappropriate ed.) that (Ian. CALJIC No. 4.36 2004 states: “When evidence shows crime, declares to be a it is no did that which law person voluntarily that that did not know that the act was unlawful or defense [he] [he] [she] 3.30, CALJIC the jury believed it to be lawful.” In accordance with No. [she] information, in the there must here was instructed: “In the crimes charged intent. union or of act or conduct and criminal joint general exist a operation criminal does not an intent to violate the law. When a General intent require crime, which declares to he is does that the law person intentionally intent, that his act with criminal even know acting general though or conduct is unlawful.” v. (2002) 104 by People Edgar
Defendant’s position supported trial court case gave “The in this Cal.Rptr.2d Cal.App.4th [127 662]. in Garcia. (See CALJIC same willfulness instruction found inadequate Furthermore, the law is excuse’ instruc 1.20.) No. like the no ‘ignorance Garcia, (CALJIC 4.36) given No. intent instruction given general tion allow to convict (CALJIC 3.30) No. ‘on its face would the jury here if unaware obligation even he were of his [appellant] v. We therefore find that (People do Cal.4th so.’ failed to this case also erroneous given they the instructions were the duty that a actual state conviction clearly 219; accord, (Ibid.)” (2004) People (Edgar, Poslof People v. Jackson 151]; Cal.Rptr.3d 223-226 Cal.App.4th [14 253].) 1634-1635 Cal.App.4th While the below dissenting justice agreed Edgar, did not. *15 short, that, “In we conclude read in combination with the CALJIC No. 1.20 willfulness, instruction on the trial court’s intent general instruction pursuant to CALJIC No. 3.30 did not mislead the ‘The jury. intent instruction general an “intentional” failure The “willful” register. instruction required “purpose willingness” to make the omission.’ v. Johnson (People [(1998)] [67,] 73 795].) two Cal.App.4th Together, these instructions informed correctly that in order to be convicted of violating had to have appellant that he was to register. There was no error.”
We
with
agree
take the
Edgar
jury might
same lesson from CALJIC
No. 3.30 as from CALJIC No. 4.36—that a defendant
may
guilty
violating section
even
if unaware of
her
obligation
register.
However,
above,
for the reasons stated
we conclude the error here was
beyond
harmless
a reasonable doubt. The record
reflects defendant
amply
aware of his registration obligation, and his
did
counsel
not claim the
contrary
the case
trying
(See
to the jury.
Defendant’s last claim of instructional error arises from the trial court’s to a response note, asked, asked question In a jury. the jury “Is forgetting regester ‘willful’ act to the The according [sic] law.” judge instructed them: “[F]orgetting register itself does not defense provide to a charge willful failure to We have concluded register.” the willfulness element of a section 290 violation not be negated by just forgetting case, Accordingly, in circumstances of this the instruction in was not question erroneous. we Again, no as to whether the express opinion instruction would be erroneous where a defendant’s forgetfulness allegedly condition, arose from an acute psychological or a chronic deficit of memory or intelligence.
Conclusion of the Court affirmed. judgment Appeal J., Baxter, J., J., Chin, J., Moreno, C. George, J., Werdegar, concurred. KENNARD, J., Dissenting. Penal Codesection requires convicted of a sex offense to law enforcement authorities a convicted sex offender. The registration must be within five updated working days (§ offender’s birthday. (a)(1)(C), former subd. now- (a)(1)(D).) If the sex crime that gave rise to the registration statutory All further citations are to this code. is also a felony, felony. was a a “willful” failure to (Id., subd. (g)(2).) that an who inadvertently
I with the offender disagree majority’s holding has violated willfully one late in address day already registered updating section 290.
I of three sex defendant was convicted forcible Twenty-five years ago, offenses, as a he was sentenced to and ordered which prison *16 of his sex offender for the rest life. a
In the defendant was San Mateo year living Project had the registered rehabilitation for alcohol and abusers. He with project drug address. Because his San Mateo Police 90 as his giving Project Department, was March he was to his statutorily required update registration birthday after his He did not do so. On working birthday. March the fifth by day a and the first morning working day the of March which was Monday officer the time his a San Mateo expired, after to update registration police defendant. message called and left a recorded to to Project asking speak 90 call in at the station police Defendant returned the 15 minutes appeared an he had to his forgotten update registration. within hour. He said he was registration, defendant was a late in Although only day updating trial, the section 290. At submitted violating jury arrested charged a regester its “Is to forgetting this deliberations: question during [sic] [¿7c] court according act to the law.” The trial responded ‘willfull’ to charge to not a defense a provide itself does “forgetting register convicted defendant of violating willful failure to register.” convictions, trial could the court felony Because of defendant’s prior, 290. Instead, under the “Three Strikes” law. have sentenced him to 25 to life years to nine one of convictions and sentenced him the court struck all but his prior years prison.
n relevant that with exceptions of section (g)(2) provides Subdivision 290 a here, this section based on is to under who “any person this sec- . . who violates any requirement conviction . felony willfully a (Italics added.) At issue is whether felony ... is of a . . . .” guilty tion five within duty who knew of the initially update defendant who to do so in that period, or her but days birthday, forgets of his working has violated section 290. willfully v. Garcia Cal.4th (2001) Cal.Rptr.2d here is People
Pertinent [107 There, an offender (Garcia). argued that for 23 P.3d 590] have must actual violate section 290 offender “willfully” do so. court unanimously2 agreed. This duty he never learned of duty the defendant in who claimed Unlike his admits he knew he had defendant here register, after days to do so five requisite he had within says Garcia reasoning its dis- Although distinguishable, birthday. factually fail to Garcia explained: “Logically here. one cannot purposefully positive As an act what act is to be knowing performed. without perform People Honig stated Cal.App.4th knows 555], ‘the term . . . that “the “willfully” imports ’ ” added.) (Garcia, he is doing.” what 25 Cal.4th at italics to do means an inadvertent failure to do Forgetting something something. failure to act. “The word That is or willful opposite purposeful omitted, when to the intent with which act is done or ‘willfully,’ applied act, commit or make the implies simply purpose willingness referred A (§ duty imposed omission to.” “willful” omission perform law, is an intentional offender, such as sex duty *17 omission, inadvertence, forgetful omission caused or negligence, 65, v. Court (See, 71 Boags Municipal e.g., (1987) ness. 197 Cal.App.3d [242 “willful a legal duty officer’s omission” Cal.Rptr. public perform 681] [a act means “a intentional omission” to A willful willing duty].) perform “ accidentally one done as from or ‘intentionally purposely distinguished 1593, ....’” ed. (Black’s (7th 1999) Law Dict. negligently quoting Here, (3d 1982) 875-876.) & defend Perkins Criminal Law ed. Boyce, pp. ant’s inadvertent but negligent, failure to timely unquestionably it was not willful.
III ante, 354; see Section 290 offense. also regulatory (Maj. opn., 322, Wright Superior Court (1997) v. 15 Cal.4th 527 936 Cal.Rptr.2d [63 101].) that is less than culpability P.2d Such offenses often require degree for conviction of a crime. This customarily the criminal negligence with such reduced regulatory culpability court has “assumed” that offenses “are where the is to purpose protect public levels constitutionally permissible 2 disagreed with Although concurring dissenting opinion I I authored a (Garcia, supra, that case majority’s that the instructional error in was harmless. conclusion Kennard, J.).) (conc. pp. opn. & dis. 25 Cal.4th 759-762 364 relatively light.” v. Simon
health and (People and the are safety penalties (1995) 9 Cal.4th 521 1271], Cal.Rptr.2d added.) 886 P.2d italics [37 But the penalties section violating 290’s are requirements anything light. sex Many offenders charged their have two or more convictions that prior as “strikes” under qualify the Three (§§ Strikes law (b)-(f), subds. 1170.12), because most sex 667.5, offenses are (see strikes (b) subd. crimes [listing §§ qualifying strikes], 1192.7, (c) [same]), and because even a sexual single assault involving victim often single results convictions multiple counts, each v. Harrison People (see of which is a strike generally Cal.3d 321 Thus, P.2d 1078]). Cal.Rptr. violators of many section 290 face sentences of 25 to life under years the Three Strikes law. To defendants who inadvertently fail to timely update such a sentence on impose their registrations, degree below that of culpability criminal negligence, may violate the state Constitution’s of cruel or prohibition unusual punish- Const., I, (Cal. ment 17) art. federal § Constitution’s prohibition Const., cruel and unusual (U.S. punishment Amend.).3 8th When a constructions, statute is to two susceptible one of which raises serious constitutional courts questions, construe the law to avoid such ques- (People (Romero) Court Superior tions. (1996) 13 Cal.4th 509 [53 Therefore, P.2d 628].) I would construe the term “willfully” as not to a convicted applying sex offender who does not inadvertently with the timely police.
IV
holding
forgetting
as a convicted
update registration
sex offender
ais
violation of section
relies on a Court
of Appeal
willful
*18
decision,
v. Cox
People
(2002)
123],
Cal.App.4th
Cal.Rptr.2d
[115
“
Cox, Quoting
states:
‘A
a
spouse may forget
anniver-
wedding
a
a
sary,
medical
patient
such
not
appointment;
arise
from a lack of
lapses
actual
but a failure
knowledge
to cues. Persons
calendars and
respond
keep
books, ask
appointment
others to remind them of duties and
obligations
People
Carmony
v.
369],
tie strings when register fails to willfully one this context that within met. We conclude to do forgets he or she of actual possessed ” ante, at p. (Maj. opn., so.’ of Appeal Court dissenting the observation I quote In response, a as celebrate something—such to do forgets “One who in this case: justice the examples using a medical anniversary, appointment, wedding keep their doctor. stand up or willfully insult their spouse not willfully Cox—does be, if one omission may an inadvertent of such Whatever the consequences is not willful.” the omission forgotten, has is treated as that, inadvertently fears unless
The majority will falsely not to register who choose of section offenders a violation their so, to prove it hard for making prosecutors to do thus they forgot claim however, claim, will ante, 357-358.) a Such (See maj. pp. guilt. opn., to attach reluctant notoriously it. Jurors are if the believes only succeed Also, the longer offenders. of convicted sex testimony to the great credibility becomes. claim of “I forgot” the less credible the delay registering, When, here, late in day updating the offender was one only as the violation was establish that it indeed be more difficult to registration, may difficult to it be? It be as just willful under section shouldn’t Why 290. a filing late in day who is one for willful tax evasion taxpayer prosecute fails “willfully” who (See tax return. 26 U.S.C. 7203 person mandatory § [a case, claim misdemeanor].) In this defendant’s taxes is of a guilty pay He was working credible: highly he call to the immediately telephone house manager Project responded At his registration. one late in day updating from the he was police, that defendant no evidence the trial found that there was court sentencing, from the police. to conceal his whereabouts had tried deliberately defeats the 290’s holding purpose The majority’s the crimes convicted of “to assure that which is persons requirement, at all surveillance available for readily police enumerated therein shall offenses to commit similar likely deemed them times because the Legislature 821, 825-826 (1970) 1 Cal.3d (Barrows Court Municipal in the future.” 483].) holding, majority’s 464 P.2d As result Cal.Rptr. hiding into likely go on time is who genuinely forgets here, arrest, like defendant sentence when facing, avoid particularly *19 track it difficult to law. In more making under the Three Strikes to life years offenders, the Legislature’s goal has frustrated these the majority down at all for surveillance available “readily police those individuals making (Ibid.) times.”
Conclusion That to do people may forget things they want and intend to do sincerely willed; a matter of common experience. cannot be it is an Forgetting reason, malfunction unplanned conscious mind. For this who it, intends to do willfully failed to do that something, to do has not forgets Thus, I thing. with the that a disagree commit person may criminal offense of “willfully” violating sex offender registration law-—a crime for which a defendant rest of his life in mere spend prison-—by forgetfulness.
I would reverse the of the Court of judgment Appeal. Appellant’s was denied petition rehearing 2004. September J., Kennard, J., C. did not George, therein. participate was of the opinion should petition be granted.