People v. BarkerPeople v. Barker
Lead Opinion
Opinion
A registered sex offender must, within five working days of the offender’s birthday, update his or her registration. (
Factual and Procedural Background
Because the issue before us is narrow, the facts may be briefly stated. Defendant is a registered sex offender. He was required to register because of two rape convictions; he was also convicted of attempted rape. His victims were 70, 73, and 84 years of age. He beat them so severely they were hospitalized; the 84-year-old was in critical condition for three days.
Defendant understood his birthday triggered an obligation to update his registration. In 1996, 1997, and 1998, he signed and dated boxes on forms that recited this obligation. Seven months before he committed this offense, defendant again signed a sex offender registration form. On this form he initialed 15 statements advising him of his various registration obligations, including the following statement: “I must, annually, within 5 working days of my birthday, go to the law enforcement agency having jurisdiction over my location or place of residence and update my registration, name, and vehicle registration.”
Nevertheless, in 2000, defendant failed, by his own admission, to update his registration within five working days of his
Defense counsel summed up his theory of the case in his argument to the jury: “This is a man that forgot to do what the law requires him to do. Period.” Counsel added: “He has a history of registration. ... It’s in the evidence. Look at it. This is a guy that does register. In this instance, he forgot.”
A jury convicted defendant of one count of violating
After denying defendant’s motion for a new trial, the trial court dismissed all but one of his 10 prior strike convictions in the interests of justice pursuant to section 1385. It then sentenced appellant to state prison for a total term of nine years as follows: the upper term of three years on count 1, doubled under the three strikes law to six years, plus three consecutive one-year terms as to the prior prison terms charged pursuant to section 667.5, subdivision (b). The trial court observed that “even a technical violation of the registration requirements by a man with defendant’s record is a very serious matter. . . . And with 10 prior strikes, nine of which are for the sort of conduct which, in my view, should have gotten him a life sentence when he did it, but the laws were not available to accomplish that at that time, ... a man with that record has to be very careful to comply with all the laws and probably shouldn’t spit on the sidewalk.”
The Court of Appeal affirmed the judgment. “In sum, we hold that simply forgetting is not a defense to a charge of violating
We affirm the judgment of the Court of Appeal.
Discussion
The statutory context in which this question arises was set forth by the Court of Appeal. “As amended in 1996, 1997 and 1998, and in effect at the time appellant
People v. Cox (2002)
In reaching this conclusion, the Cox court found our decision in People v. Garcia (2001)
We agreed with the defendant in Garcia. “In a case like this, involving a failure to act, we believe
The Cox court found Garcia distinguishable on the following grounds: “We conclude there is a fundamental difference between Garcia’s claim that he did not know he was required to register and appellant’s claim that he forgot to register. Forgetting presupposes knowledge. Appellant, in our view, conceded that he had actual knowledge of the registration requirement. Human beings store in their brains a myriad of facts. At any given time the vast majority of those facts are in storage waiting for some cue to bring them to conscious recognition. A spouse may forget a wedding anniversary, a patient a medical appointment; such lapses arise not from a lack of actual knowledge but a failure to respond to cues. Persons keep calendars and appointment books, ask others to remind them of duties and obligations and tie strings around their fingers all to insure that important responsibilities are met. We conclude that within this context one willfully fails to register when possessed of actual knowledge of the requirement he or she forgets to do so.” (Cox, supra,
“There are simply some things,” the Cox court observed, “that cannot be forgotten.” (Cox, supra,
As the Cox court observed, the registration scheme “places strict demands not only on registrants but also on state and local agencies.” (Cox, supra,
“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 lapse of memory would excuse a failure to register. There are simply some things that cannot be forgotten. To allow forgetfulness to excuse a failure to register, would serve, in this context, as an incentive not to remember.” (Cox, supra,
In this case, the Court of Appeal was divided. The majority of the court agreed with Cox. “[W]e are of the opinion that—as a matter of law— forgetting, by itself, does not negate willfulness for purposes of a charge of violating the registration updating requirement of
The dissenting justice below objected: “The conclusion reached in Cox and reaffirmed here—in effect, that a defendant is deemed to know whatever he once knew—is inconsistent with both the language and the reasoning of Garcia. In Garcia the Supreme Court concluded that ‘the court’s instructions on “willfulness” should have required proof that, in addition to being formally notified by the appropriate officers as required by
The dissenting justice below read too much into the fact that we used the present tense know in Garcia. In Garcia, we were not considering the question presented here, and it is axiomatic that a decision does not stand for a proposition not considered by the court (People v. Harris (1989)
The majority below explained: “Although under Garcia, knowledge is required for willfulness, forgetting a fact does not negate the preexisting knowledge thereof. To the contrary, forgetfulness requires the preexistence of knowledge, since one cannot forget something unless one already knows it. . . . The opposite of knowledge is ignorance. Because knowledge of the registration requirement is a necessary element of the crime as defined by
the fact is imparted.”
1
Contrary to the reading of it by the dissenting justice below, the legislative history of
Initially, failure to register as a sex offender was clearly a regulatory offense within the Morissette definition. When
A decade after the enactment of
In 1979, two decades after the Lambert decision, a willfulness element was for the first time introduced into
The parties have not drawn our attention to, nor has our research revealed, any explanation in the legislative history as to why the willfulness element was added in the 1979 amendment. Lambert, however, provides a basis for speculation. The 1979 amendment provided a greater penalty—at least 90 days in county jail and probation for at least one year—for failure to register by those convicted of specified sex offenses. In light of Lambert, the Legislature may have concluded that a conviction carrying the greater penalty would (or should) stand only if, in the words of Lambert, “actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply” (Lambert, supra,
This is speculation, but it has at least some basis. The legislative history, being completely silent on the question why the willfulness element was added by the 1979 amendment, provides no basis whatsoever for the assertion made by defendant—that the Legislature in 1979 intended that the willfulness element might be negated by proof that an offender just forgot to register.
The dissenting justice below finds significance in the fact that subsequent attempts to amend
The dissenting justice below also found significance in the fact that federal income tax law, immigration law, and selective service law recognize the “significant difference between a statute criminally punishing the mere failure to perform a legally required act, as to which forgetting provides
Admittedly, the argument that a person cannot be said to know something if he or she has forgotten it, for whatever reason, does have a superficial plausibility. However, we agree with Cox and the majority below: It is simply inconceivable the Legislature intended just forgetting to be a sufficient excuse for failing to comply with
“Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. (People v. Snook (1997)
“The purpose of
“To this end, a convicted sex offender must register not only on conviction, but whenever ‘coming into any city, county, or city and county in which he or she temporarily resides or is domiciled ....’(
In Wright, we noted with approval an observation made by the district attorney in that case: “[S]ex offenders often have a transitory lifestyle or deliberately attempt to keep their movements secret. Requiring a prosecutor to prove when the person moved—information uniquely within
In summary, we conclude that countenancing excuses of the sort given by defendant that he just forgot about his registration obligation “would effectively ‘eviscerate’ the statute” just as surely as characterizing violation of the statute as an instantaneous offense would have eviscerated it. (Wright, supra,
We emphasize the limits of our holding. We do not here express an opinion as to. whether forgetfulness resulting from, for example, an acute psychological condition, or a chronic deficit of memory or intelligence might negate the willfulness required for a
Finally, defendant contends the trial judge made several instructional errors regarding his claim that he forgot to update his registration; “[Defendant] was denied his rights under the United States and California Constitutions to the due process of law, to a jury trial, and to present a defense by the combination of (a) the court’s failure to instruct as to the ‘knowledge’ element of violation of
This case was tried in 2000, the year before we issued our opinion in Garcia. Therefore, the jury was not instructed, as we held in Garcia a jury trying an alleged
As previously stated, the record demonstrates defendant was not only notified of his annual registration obligation, but also actually knew what his obligation was. In 1996, 1997, and 1998, defendant signed and dated boxes on forms that recited this obligation. Seven months before he committed this offense, defendant again signed a sex offender registration form. On this form he initialed 15 statements advising him of his various registration obligations, including the following statement: “I must, annually, within 5 working days of my birthday, go to the law enforcement agency having jurisdiction over my location or place of residence and update my registration, name, and vehicle registration.” When he was arrested for this offense, defendant acknowledged he had not only initialed these advisements but also that he had read and remembered them, although only “vaguely.” Asked why he had failed to update his registration within the grace period, defendant responded, “[BJecause I’m in a program, I’m a house manager,” a job that “keeps me busy all the time.” Pressed further, he said, “Well, you know what, I totally forgot about it, I’m not going to make up no excuses.” Asked whether it was safe to say his annual registration obligation had “[k]ind of just skipped [his] mind,” defendant answered, “Yes.”
Defense counsel tried this case to the jury on the theory that defendant forgot to register, not that he did not actually know of the obligation. “What did he tell the police? That he forgot. It slipped his mind. Well, you know what, I totally forgot about it. I’m not going to make up no excuses. I was busy. I’m a house manager. I’m in the program, [f] To find Don Barker not guilty obviously you need to accept that statement.” Defense counsel elaborated on this argument: “I know automatically one would think, how the heck can you forget such an important thing. And it comes up on an important day. For Don Barker, it’s a landmark day. It’s March 5th. It’s his 50th birthday, [f] The answer I’ve just given you. He’s focused on his issues, his substance abuse, his treatment, his new duties as a house manager. It happens. It happened here. This is not a guy who’s on the run. This is not a guy that’s in hiding. This is a man that forgot to do what the law requires him to do. Period.” “He has a history of registration. ... It’s in evidence. Look at it. This is a guy that does register. In this instance, he forgot.”
We turn to defendant’s second, related claim of instructional error. In Garcia, we held the trial court “erred in giving an ‘ignorance of the law is no excuse’ instruction (CALJIC No. 4.36), which on its face would allow the jury to convict defendant of failing to register even if he were unaware of his obligation to do so.” (Garcia, supra, 25 Cal.4th at p. 754.) CALJIC No. 4.36 was not given here. However, defendant contends an instruction that was given—CALJIC No. 3.30—was also “clearly an ‘ignorance of the law is no excuse’
CALJIC No. 4.36 (Ian. 2004 ed.) states: “When the evidence shows that a person voluntarily did that which the law declares to be a crime, it is no defense that [he] [she] did not know that the act was unlawful or that [he] [she] believed it to be lawful.” In accordance with CALJIC No. 3.30, the jury here was instructed: “In the crimes charged in the information, there must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.”
Defendant’s position is supported by People v. Edgar (2002)
While the dissenting justice below agreed with Edgar, the majority did not. “In short, we conclude that, read in combination with the CALJIC No. 1.20 instruction on willfulness, the trial court’s general intent instruction pursuant to CALJIC No. 3.30 did not mislead the jury. ‘The general intent instruction required an “intentional” failure to register. The “willful” instruction required a “purpose or willingness” to make the omission.’ (People v. Johnson [(1998)] 67 Cal.App.4th [67,] 73 [
We agree with Edgar that a jury might take the same lesson from CALJIC No. 3.30 as from CALJIC No. 4.36—that a defendant may be guilty of violating
Defendant’s last claim of instructional error arises from the trial court’s response to a question asked by the jury. In a note, the jury asked, “Is forgetting to regester [sic] a ‘willful’ act according to the law.” The judge instructed them: “[F]orgetting to register by itself does not provide a defense to a charge of willful failure to register.” We have concluded the willfulness element of a
Conclusion
The judgment of the Court of Appeal is affirmed.
George, C. J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
Subsequent statutory references are to the Penal Code unless otherwise indicated.
In 1989, willfully failing to register became a felony if the offender had two prior convictions for failure to register. All other failures to register under
As previously noted, the majority below, in dictum, opined: “In contrast to the kind of subjective ‘forgetfulness’ defense argued by appellant here, under the statutory definition of ‘willfully’ found at section 7, subdivision 1, an omission to act would not be ‘willful’ if objective circumstances beyond the defendant’s control prevented him from acting. For example, a debilitating injury, illness or mental infirmity might objectively prevent a defendant from registering in timely fashion, thereby rendering ‘unwillful’ the defendant’s failure to register in compliance with the strict time deadlines of
Dissenting Opinion
Penal Code
I disagree with the majority’s holding that an offender who inadvertently is one day late in updating his already registered address has willfully violated
I
Twenty-five years ago, defendant was convicted of three forcible sex offenses, for which he was sentenced to prison and ordered to register as a sex offender for the rest of his life.
In the year 2000, defendant was living in San Mateo at Project 90, a rehabilitation project for alcohol and drug abusers. He had registered with the San Mateo Police Department, giving Project 90 as his address. Because his birthday was March 5, he was statutorily required to update his registration by March 10, the fifth working day after his birthday. He did not do so. On the morning of March 13, which was a Monday and the first working day after the time to update his registration expired, a San Mateo police officer called Project 90 and left a recorded message asking to speak to defendant. Defendant returned the call in 15 minutes and appeared at the police station within an hour. He said he had forgotten to update his registration.
Although defendant was only a day late in updating his registration, he was arrested and charged with violating
n
Subdivision (g)(2) of
Pertinent here is People v. Garcia (2001)
Unlike the defendant in Garcia, who claimed he never learned of the duty to register, defendant here admits he knew he had to update his registration but says he forgot he had to do so within the requisite five days after his birthday. Although Garcia is factually distinguishable, its reasoning is dis-positive here. Garcia explained: “Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. As stated in People v. Honig (1996)
Forgetting to do something means an inadvertent failure to do something. That is the opposite of a purposeful or willful failure to act. “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to.” (§ 7.) A “willful” omission to perform a duty imposed by law, such as the duty to register as a sex offender, is an intentional omission, not an omission caused by negligence, inadvertence, or forgetfulness. (See, e.g., Boags v. Municipal Court (1987)
III
But the penalties for violating
When a statute is susceptible to two constructions, one of which raises serious constitutional questions, courts construe the law to avoid such questions. (People v. Superior Court (Romero) (1996)
IV
In holding that forgetting to update registration as a convicted sex offender is a willful violation of
In response, I quote the observation by the dissenting Court of Appeal justice in this case: “One who forgets to do something—such as celebrate a wedding anniversary, or keep a medical appointment, using the examples in Cox—does not willfully insult their spouse or willfully stand up their doctor. Whatever the consequences of such an inadvertent omission may be, if one has forgotten, the omission is not willful.”
The majority fears that, unless inadvertently failing to register is treated as a violation of
When, as here, the offender was only one day late in updating the registration, it may indeed be more difficult to establish that the violation was willful under
The majority’s holding defeats the purpose of
Conclusion
That people may forget to do things they sincerely want and intend to do is a matter of common experience. Forgetting cannot be willed; it is an unplanned malfunction of the conscious mind. For this reason, a person who intends to do something, but forgets to do it, has not willfully failed to do that thing. Thus, I disagree with the majority that a person may commit the criminal offense of “willfully” violating the sex offender registration law-—a crime for which a defendant may spend the rest of his life in prison-—by mere forgetfulness.
I would reverse the judgment of the Court of Appeal.
Appellant’s petition for a rehearing was denied September 29, 2004. George, C. J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.
All further statutory citations are to this code.
Although I authored a concurring and dissenting opinion in Garcia, I disagreed only with the majority’s conclusion that the instructional error in that case was harmless. (Garcia, supra, 25 Cal.4th at pp. 759-762 (conc. & dis. opn. of Kennard, J.).)
In People v. Carmony (2004)