THE PEOPLE, Plаintiff and Respondent, v. BRUCE EDWARD NORTH, Defendant and Appellant.
No. A097247
First Dist., Div. Three.
Oct. 9, 2003.
112 Cal.App.4th 621
Richard Such, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Acting Assistant Attorney General, Rene A. Chacon and Nanette Winaker, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PARRILLI, J.—California‘s sex offender registration statute requires offenders who have no residence to register in the jurisdiction where they are “located” within five working days of changing their “location,” and give the authorities written notice of their new “location.” (
After careful consideration of the disputed language in its statutory context, and in light of its legislative purpose, we are constrained to agree that
On the other hand, the basic registration requirements for transient sex offenders—that they register in each jurisdiction in which they are regularly “located” and update their registration every 60 days (
On November 30, 1999, as his parole date approached, appеllant Bruce Edward North signed a form notifying him of the requirements for registration as a sex offender upon his release from prison. A counselor at Folsom State Prison went over the form with North and orally explained the requirements. The form noted the necessity of registering within five working days of a change in “residence or location” and informing the authorities of the change within five days, though what information was to be provided was not specified. On May 9 or 10, 2000, North signed the same notification form at San Quentin.
North was paroled on May 27, 2000. On May 30 he met with his parole agent, Steve McCoin, and they discussed the registration requirements. McCoin gave North a voucher to pay for a room at the Garden Motel in Redwood City, and told him to rеgister at that address with the Redwood City Police Department. McCoin told North that if he were homeless, as he was at the time of this first meeting, he would have to reregister as a homeless person.
North registered with the Redwood City Police Department on June 1, giving the Garden Motel as his address. The notification statement on the registration form included statements, initialed by North, acknowledging the requirements that he register within five working days of changing his “residence or location” and “inform the registering agency with which [he] last registered of the new address.” North testified that the officer who took his registration told him he would have to come in and register every day if he became homeless, and provide an address each time. A Rеdwood City police officer confirmed that the department‘s policy was to require homeless sex offenders to come in daily and let the police know the address where they would be sleeping.
On June 5, the parole office helped North get a room at the Capri Motel in Redwood City. On June 8, North registered with the San Mateo Police Department. He gave a street address, but explained he was homeless and would be sleeping under a tree at that location. He listed the Garden Motel in Redwood City as an alternate address. North testified that he did not actually stay under the tree that night, however. Instead, he went back to the Garden Motel because McCoin told him it would be a parole violation for him to leave Redwood City. McCoin did not have a specific recollection of such a conversation, but said he told his parolees that if they were going to be homeless, they had to be homeless in Redwood City where McCoin‘s office was, and had to register as homeless persons with the Redwood City police. On June 9, North reregistered in Redwood City at the Garden Motel address.
McCoin reported North to the police as a parolee at large. North came to the parole office on July 6 for a medical appointment, but McCoin did not see him. When North came in for another medical appointment on July 13, McCoin arrested him for violating his parole. North admitted to McCoin that he had not been staying at the Garden Motel, and had not reregistered with the police department. The only registrations the Redwood City police had for North in June 2000 were those for the Garden Motel on June 1 and June 9.
North was recommitted to prison for the parole violation. After he had served his time for that violation, McCoin spoke to the police about North‘s failure to reregister when he left the Garden Motel in June. On November 30, 2000, an officer interviewed North at the parole office. North told the officer he had decided to leave the Garden Motel and live on the streets because the motel was a “hot spot” for criminal activity and he was trying to “stay clean.” He admitted he had known he was violating his parole and the registration requirements. He had no excuses for failing to notify the police or his parole agent about his change of residence. However, when the officer told North he could have registered as a transient, North responded that he would have been required to give an address, and he had no address.
North testified that he had understood he was supposed to inform the police when he left the Garden Motel. He said: “I knew at that time it was the wrong thing to do, but under the circumstances I just wanted to get out of Redwood City period. I knew that I was doing something illegally that I shouldn‘t have been doing. And I felt deep in my heart I just didn‘t feel like staying there.” Asked where he spent his nights between June 24 and July 13, North answered: “Some nights I‘ll sleep on the side of freeways. Some nights I‘ll walk around half of the night, sleep at bus stations. Some nights I‘ll stay with a friend I met along the way.” He went “back and forth” between Redwood City and San Mateo. He felt he was in a “Catch-22 situation” regarding registration, because if he went to the police he would either be arrested for failing to register, or told to go to a shelter, and McCoin
The jury convicted North of failing to register as a sex offender under
DISCUSSION
North has raised a variety of claims on appeal. In a supplemental brief, he argues that
North challenges the requirements that a sex offender who lacks a residence must register in the jurisdiction in which he “is located” (
The Attorney General attempts to distinguish Sanchez on the ground that
“The due process concept of fair warning is the underpinning of the vagueness doctrine, whiсh ‘bars enforcement of “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.“’ (United States v. Lanier [(1997)] 520 U.S. 259, 266 [137 L.Ed.2d 432, 117 S.Ct. 1219], quoting Connally v. General Construction Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 46 S.Ct. 126]; Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [83 L.Ed. 888, 59 S.Ct. 618] [‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.‘].) Recently, the United States Supreme Court had this to say on the topic: ‘Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.’ (Chicago v. Morales (1999) 527 U.S. 41, 56 [144 L.Ed.2d 67, 119 S.Ct. 1849].)” (People v. Castenada (2000) 23 Cal.4th 743, 751 [97 Cal.Rptr.2d 906, 3 P.3d 278].)
“Two principles guide the evaluation of whether a law . . . is unconstitutionally vague. First, ‘abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law‘s meaning, giving facially standardless language a constitutionally sufficient concreteness.’ (People ex rel. Gallo [v. Acuna (1997)] 14 Cal.4th [1090,] 1116 [60 Cal.Rptr.2d 277, 929 P.2d 596].) Second, only reasonable specificity is required. (Id. at p. 1117.) Thus, a statute ‘will not be held void for vagueness “if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.“’ (Ibid.)” (People v. Lopez (1998) 66 Cal.App.4th 615, 630 [78 Cal.Rptr.2d 66].)
Terms that might otherwise be considered vague may meet the standard of reasonable certainty when considered in context with other terms, and in view of the legislative purpose. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1116-1118.)
2. Section 290 and Transient Sex Offenders
The purpose of
North acknowledges the legislative purpose of the 1997 amendments adding “location” requirements was to bring transient sex offenders, who have no “residence,” within the scope of
“(a)(1)(A) Every person described in paragraph (2) [i.e., those required to register], for the rest of his or her life while residing in, or, if he or she has no residence, while located within California . . . shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located . . . within five working days of coming into, or changing his or her residence or location within, any city . . . in which he or she temporarily resides, or, if he or she has no residence, is located.3
. . .
“(B) If the person who is registering has more than one residence address or location at which he or she regularly resides or is located, he or she shall register in accordance with subparagraph (A) in each of the jurisdictions in which he or she regularly resides or is located. If all of the addresses or locations are within the same jurisdiction, the person shall provide the registering authority with all of the addresses or locations where he or she regularly resides or is located.4
“(C) If the person who is registering has no residence address, he or she shall update his or her registration no less than once every 90 days in addition to the requirement in subparagraph (A), on a form as may be required by the Department of Justice, with the entity or entities described in subparagraph (A) in whose jurisdiction he or she is located at the time he or she is updating the registration.5
“(D) Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subparagraph (A), including, verifying his or her name and address, or temporary location, and place of employment including the name and address of the employer, on a form as may be required by the Department of Justice.”6
“(e)(1) . . .
“(2) . . . The registration shall consist of all of the following: . . .
“(E) Copies of adequate proof of residence . . . . If the person has no residence and no reasonable expectation of obtaining a residence in the foreseeable future, the person shall so advise the registering official and shall sign a statement provided by the registering official stating that fact. Upon presentation of proof of residence to the registering official or a signed statement that the person has no residence, the person shall be allowed to register . . .”7
“(f)(1) If any person who is required to register pursuant to this section changes his or her residence address or location, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, the person shall inform, in writing within five working days, the law enforcement agency or agencies with which he or she last registered of the new address or location. The law enforcement agency or agencies shall, within three days after receipt of this information, forward a copy of the change of address or location information to the Department of Justice. The Department of Justice shall forward appropriate registration data to the law enforсement agency or agencies having local jurisdiction of the new place of residence or location.”8
“(g) Except as otherwise provided in paragraph (5) [violations of 90-day updating requirement by sexually violent predators], and in addition to any other penalty imposed under this subdivision, any person who is required . . . to update his or her registration every 90 days and willfully fails to update
Thus, in 1997, when the Legislature first specifically addressed the problem of registering transient sex offenders, it did so by requiring registration in the jurisdiction where the offender is “located,” an update of the registration every 90 days, and verification of the offender‘s “temporary location” as part of the annual registration update. Violation of the 90-day updating requirement was made a misdemeanor, an exception to the usual rule that willful violations of
In 1998, the Legislature made the registration requirement of
In 1999, the Legislature addressed the issue of multiple residences or “locations,” mandating registration in each jurisdiction where a transient offender is “located” and requiring the offender to “provide the registering authority with all of the . . . locations where he or she regularly resides or is located.”
3. Analysis
Tracking sex offenders who are trаnsient is both an important statutory objective and one fraught with practical difficulties. The Legislature has chosen to pursue this objective by requiring offenders who have no residence to register where they are “located” within five working days (including multiple “locations” where they may be “regularly” found), reregister and provide notification whenever they change “location,” update their registration every 60 days (formerly, every 90 days), and verify their “temporary location” on an annual basis.
The Attorney General fails to grapple with the difficult element of time—how many nights, and for how long each night, must an offender spend in a particular place before it becomes a registerable “location“? The Redwood City police told North he had to tell them where he would sleep each night, but that requirement cannot be squared with the five-day grace period allowed for registration. In any event, what is the use of registering a briefly occupied “location“? The utility of obtaining registrations for places slept in only for a night or two, and perhaps never returned to, is so questionable as to cast serious doubt the Legislature intended such fleetingly relevant and rapidly accumulating information to be part of the registration scheme, which includes the forwarding of “location” information to and from the Department of Justice. In many cases, the information forwarded would be obsolete by the time it was received.
The registration grace period has been adopted as a point of reference for defining the term “residence” in
At oral argument, the Attorney General suggested
In light of these considerations, we do not believe the Legislature meant to limit the application of the term “location” to places where transient offenders sleep at night. Alternatively, the Legislature‘s use of the more general terms “located” and “location” might be understood as an attempt to extend the registration requirements to include places other than where the offender sleeps or resides, such as a place of employment, or a place where the offender spends time at leisure or engaged in оther activities. This is the most natural sense of the term “location,” denoting any place physically occupied on a regular basis.
However, the registration of every particular location at which an offender is regularly present is not feasible, and even in theory would lead to multiple and often meaningless registrations. A transient offender may occupy many locations on a more or less regular basis during the course of a day, week, or month.
Furthermore, the breadth of the “location” provisions of
Accordingly, we hold that when the Legislature used “location” to require registration or notification of particular places where an offender may regularly be found, it failed to provide enough specificity for either the offender or the authorities to understand what the statute demands. The provisions of
On the other hand, when the Legislature used “located” as a basis for identifying the jurisdictions in which registration is required, it provided the offender and the authorities with a reasonably certain registration requirement. It is possible to ascertain when a transient offender is within a jurisdiction, though it cannot be determined which locations within the jurisdiction must be separately identified, or when movement within the jurisdiction constitutes a change of location. Thus, the provisions of
“Located” for purposes of these requirements means рresent in the jurisdiction on a regular basis. What constitutes a “regular basis” in this context must be considered in light of the legislative intent to include offenders who are transient, and thus likely to be less “regular” in their routines than offenders with residences. The five day grace period for registration gives an indication of the time frame contemplated by the Legislature, as recognized in McCleod, supra, 55 Cal.App.4th 1205. By the same logic employed in McCleod, we conclude an offender is “located” in a jurisdiction for purposes of registration when he is present in the jurisdiction
Our interpretation of the statute accounts for offenders whо change status from resident to transient, as did North in this case, or from transient to resident. The reregistration requirements in these situations pass muster under the vagueness doctrine, so long as transient offenders are not required to provide the authorities with statutorily unspecified “locations.” An offender registered as a resident who becomes transient has five working days to reregister as a transient under the terms of
We recognize our construction of
We can do no better with the statute in its present form.
It may be that transients are so differently situated from offenders with residences that the current address-based registration requirements cannot be adapted to fit their circumstаnces. A separate scheme, perhaps in a separate section or subdivision, may be advisable. Transient offenders could be required to designate locations where they can be found at certain times, or to
We leave the weighing of alternative solutions to the Legislature. It is uniquely within the legislative province to collect information and ideas for developing a more comprehensive registration system for transient sex offenders.
4. North‘s Case
North‘s conviction under
DISPOSITION
The judgment is reversed.
Corrigan, Acting P. J., and Pollak, J., concurred.
POLLAK, J.—I concur in the thoughtful majority opinion, which has correctly demonstrated the hopeless ambiguity that has been created by
I write separately to express one caveat to the majority opinion, that may be more theoretical than real, but which I believe further underscores the need for legislative clarification. I agree with the majority opinion that ” ‘Located’ for purposes of these requirements means рresent in the jurisdiction on a regular basis.” (Maj. opn. ante, at p. 634.) I also agree with the statement that “[o]ne who for five working days sleeps in a park in San Mateo and spends the day walking the streets of Redwood City would have to register as a transient in both jurisdictions by the fifth day.” (Id. at p. 635.) However, I believe that implicit in these statements is the additional requirement that the offender must be present in the particular jurisdiction for some appreciable period of time on each of those days. I do not believe that a transient offender who commutes daily between San Francisco and San Jose must register in every jurisdiction through which the offender passes. Although only the Legislature has the ability to establish a fixed and preсise time period, I would suppose that such a period would be measured in hours rather than minutes. I do not understand the majority opinion necessarily to disagree with this view, but simply to leave to another day issues that would arise if it were shown that a transient offender was present every day in a particular jurisdiction but only fleetingly or in transit. Such issues may never arise if the statute is promptly clarified.
In this same regard, I would also emphasize the obvious fact that transient offenders may not always be aware of the jurisdiction that they are within at any particular time. It is one thing to expect a person to know the jurisdiction within which their residence is located. It is another to expect a transient to be aware of thе imaginary lines that separate one municipality from another and from the unincorporated areas of the county, and that separate one county
On October 20, 2003, the opinion was modified to read as printed above.