People v. SmithPeople v. Smith
Opinion
Defendant, a convicted sex offender, is required to register with the police and tell them where he is living. (
We conclude that the trial court erred in instructing the jury that a registrant who mails a change-of-address notice within the statutory five-day period nevertheless violates
I
Defendant lived in Long Beach, California. He published an advertising newspaper, the Bixby Beat, with a circulation of about 10,000. On April 7, 1999, he told his readers in an editorial that he was selling the paper and moving east where his family lived.
Detective Newland testified that he did not receive any notice from defendant and did not know that defendant had left California. On September 25, 1999, defendant was due for his annual reregistration as a sex offender. When defendant did not appear, Detective Newland tried to contact defendant but found defendant’s Long Beach apartment vacant. Following up on various leads, Newland contacted Lieutenant Maryann Schultes of the police department in Port Jervis, New York. Officers from that police department took defendant into custody.
Lieutenant Schultes testified that during booking defendant told her he had left Long Beach on April 10, 1999, but had not notified authorities because he wanted “to start a new life.” Defendant, however, claimed that he told Lieutenant Schultes that he mailed a change-of-address notice to the Long Beach Police. Defendant denied telling Schultes that he had not notified authorities because he wanted to start a new life.
During its deliberations, the jury told the court that after six votes it was deadlocked with a seven-to-five split. According to the foreman, “we were pretty dead set on our answers.” The court invited questions, and it conferred with counsel as to how to respond to the questions.
When the jury returned to the courtroom, Juror No. 7 said that one juror was interpreting the court’s instructions to mean that it did not matter whether defendant sent a change-of-address notice to the Long Beach Police because “the fact it didn’t get there meant there was no notification.” Juror No. 7 inquired if it “was correct for that juror to interpret it that way.” The court responded: “A is the obligation of the person who has to register to see that written notification is received by the police department.” (Italics added.) Juror No. 11 asked: “If it is his obligation, then why does ‘willful’ have anything to do with it?” The court replied: “Because it goes to knowledge of obligation. Let me give you an example. I don’t think it would be fair for a person who has to register to walk down the street and see a police officer on patrol and throw a post card into that police officer’s car and say, ‘Here, that’s all I have to do.’ Would it? ... So I don’t think that’s good enough. That’s just an off the top of my head example, but the law is, I believe, that it is the obligation of the person who has to register ... to see to it that there is receipt of the written notification of a change of address or a move out of the state.” Juror No. 11 then asked: “[W]hy doesn’t that just make him guilty then if they don’t have it because he didn’t check it out to make sure that they had received it? Why is there even a question here?” The court responded, “I think that’s for you to decide.”
After the jury retired, defense counsel put on the record his objection to the instruction that the defendant must prove receipt of the notice by the police agency. The trial court acknowledged that defense counsel “may be absolutely right,” and it invited counsel to renew his objection if there was a conviction. The jury returned a guilty verdict 20 minutes later. Defendant then renewed his objection in a motion for new trial. The trial court denied the motion and sentenced defendant to five years in prison.
II
The Attorney General contends that the phrase “shall inform” means that a registrant has a duty to ensure that the police actually receive the change-of-address form. Defendant, however, insists that a timely mailing is sufficient compliance.
In construing a statute, “ ‘we strive to ascertain and effectuate the Legislature’s intent.’ [Citations.] Because statutory language ‘generally provide[s] the most reliable indicator’ of that intent [citations], we turn to the words themselves, giving them their ‘usual and ordinary meanings’ and construing them in context . . . .”
(People
v.
Castenada
(2000)
Because both parties have advanced reasonable interpretations of
We reversed the Court of Appeal’s judgment, explaining: “We disagree with the Court of Appeal’s overly technical analysis. Initially, we note that failure to comply with California’s sex offender registration law constitutes a penal offense. . . . That being so, the statute must be construed as favorably to the defendant as its language and the circumstances of its application
Our opinion in
Franklin
continued; “[G]iven the limited application of
Following the reasoning of
Franklin,
which requires that registrants be given “clear notice” of their responsibilities, we inquire whether
Some statutes require more.
No such requirements appear in
The Attorney General’s theory that a defendant has not informed the police of his change of address until the police actually receive the change-of-address notice
The Attorney General suggests that a registered sex offender could send the notice to the police by mail with a return receipt. It is doubtful, however, that this method would allow a defendant to learn of nondelivery and send a second notice in time for it to be received within the statutory five-day period. The Attorney General also suggests that a registrant sending a notice by ordinary mail telephone the police to learn if they received it. But by the time the registrant learned that his notice was not going to be delivered in the regular course of mail, insufficient time might remain for sending a second written communication that would arrive within the statutory period. Finally, the Attorney General suggests sending the notice by fax or e-mail, if the defendant is able to use those methods and the law enforcement agency is willing to accept notification in that form. But none of these methods of transmitting a change-of-address notice is mentioned in the statute itself. The language of the statute itself is insufficient to warn the registrant that he must resort to such special methods of delivery in order to avoid committing a felony.
We appreciate the Attorney General’s concern that if we interpret subdivision (f)(1) to require only the mailing of notice within five days, a defendant who deliberately failed to send any notice might attempt to forestall his conviction by falsely claiming the notice was lost in the mail. But the statutory construction the Attorney General proposes—requiring the registrant to monitor the communication to make certain that it is received within the five-day period—is, for the reasons we have stated, neither fair nor workable. A better approach, we think, would be for the Legislature to amend the statute to provide “clear notice”
(Franklin, supra,
We conclude that under
III
Under the circumstances of this case, the trial court’s instructional error was prejudicial. Defendant’s only defense
In arguing that any error was harmless, the Attorney General contends that only Jurors 7 and 11 asked questions that suggested they were confused about the statutory notification requirement, from which he infers that the other 10 jurors had no doubts. This inference is unreasonable; the silent jurors might have had the same doubts in mind, but found them resolved by the trial court’s response to the questions asked by Jurors 7 and 11. The Attorney General also notes that Juror No. 7 said one juror thought the defendant had sent a change-of-address notice but that defendant would still be guilty if it was not received. From this statement the Attorney General infers that 11 jurors did not believe defendant had mailed a change-of-address notice. Again the inference is unreasonable; some jurors might have believed the card was sent and that defendant was innocent. This kind of speculation on the views of individual jurors is not fruitful, and overlooks that the jury was split 7-5, not 10-2 or 11-1.
The Attorney General also argues that the trial court’s response to a question by Juror No. 11 cured any prejudice arising from the court’s erroneous instruction that defendant must prove that the police actually received his change-of-address notice. As we noted earlier (ante, at p. 796), when the court told the jury that defendant had the burden of showing that the police actually received the change-of-address notice, Juror No. 11 inquired: “If this is his obligation, then why does ‘willful’ have anything to do with it?” The court replied, “Because it goes to knowledge of the obligation.” The Attorney General theorizes that the jury would realize from the court’s comment that defendant could not be convicted unless he knew he had an obligation to ensure that his change-of-address notice was actually received by the police, and willfully failed to carry out that duty.
But the Attorney General’s theory presupposes that
IV
Defendant contends that California lacked jurisdiction to try him for a violation of
Defendant’s theory is that California has a general policy of applying its penal law only to crimes committed within the state, and that under this policy Penal Code
Defendant’s obligation to notify the police of his change of address was created by his conduct in California—the commission of crimes requiring registration as a sex offender. He cannot escape that obligation by moving to another jurisdiction. The case is conceptually no different from one in which a California resident moves to another state but retains an obligation to pay tax on California income (see
DISPOSITION
The judgment of the Court of Appeal is reversed.
George, C. J., Baxter, J., Werdegar, J., Chin, J., Brown, J., and Moreno, J., concurred.
Notes
Unless otherwise indicated, all statutory citations are to the Penal Code.
Section 186.30 requires a convicted gang member to register with the chief of police of the city of residence; section 186.32, subdivision (b) provides: “Within 10 days of changing his or her . . . address, any person subject to Section 186.30 shall inform, in writing, the law enforcement agency with whom he or she last registered of his or her new address.” Section 457.1, subdivision (b)(1) requires a convicted arsonist to register with the law enforcement agency of the city where the person is residing; subdivision (g) states that if the registrant “changes his or her residence address, he or she shall inform, in writing within 10 days, the law enforcement agency with whom he or she last registered of his or her new address.” Health and Safety Code section 11590, subdivision (a), requires specified convicted drug offenders to register; Health and Safety Code section 11594 then provides that if a registrant changes his or her residence, “he or she shall inform, in writing within 10 days, the law enforcement agency with whom he or she last registered of his or her new address.”
The pertinence of
Franklin
is .not diminished by a later decision in
People v. Avery
(2002)