Case Information
*1 Filed 8/26/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
THE PEOPLE, H041657
(Monterey County Plaintiff and Respondent, Super. Ct. No. SS141089) v.
THOMAS ADRIAN TOLOY,
Defendant and Appellant. A Penal Code section 290 [1] registrant is required to reregister within five working days of his or her release after serving a jail sentence of 30 days or more. (§§ 290, 290.015, subd. (a).) “Any person who is released . . . from a jail . . . where he or she was confined, who is required to register pursuant to the Act, shall, prior to . . . release, be informed of his or her duty to register under the Act by the official in charge of the place of confinement . . . .” (§ 290.017, subd. (a).)
Defendant Thomas Adrian Toloy, a section 290 registrant, was released from jail in April 2014 after serving a jail term of more than two months. Although he had previously been informed of his obligation to reregister following release after a jail term of 30 days or more, he was not again informed of that duty upon his April 2014 release *2 from jail. He failed to reregister, was convicted by court trial of failing to reregister, and was committed to state prison.
On appeal, he contends that he could not be convicted of failing to reregister due to the failure to give the notice required by section 290.017. [2] The Attorney General asserts that section 290.017 does not require notice to be given each time a person required to register under section 290 is released from confinement. We conclude that section 290.017 does requires notification upon each release, but we also conclude that the requirement is directory rather than mandatory and therefore did not provide a defense to defendant. Consequently, we affirm the judgment.
I. Background
In 2001, defendant was convicted of continuous sexual abuse of a child under 14 (§ 288.5), sentenced to 12 years in prison, and ordered to register as a sex offender under section 290. He was released on parole in 2011. His performance on parole was “[d]ismal.” Defendant served time in jail seven times for parole violations.
Defendant registered with the Salinas Police Department under section 290 on January 7, 2014. The residence he registered was a hotel in Salinas. He had registered under section 290 at least 20 times since his release from prison in 2011. At the time of his January 2014 registration, he was informed of his obligation to reregister upon release from incarceration if he served a term of 30 days or more.
Defendant served a jail term in the Monterey County jail for a parole violation from February 5, 2014 to April 13, 2014. There is no evidence that he was again informed of his reregistration obligation upon his release from jail in April 2014. After *3 his release from jail, defendant returned to residing at the same hotel in Salinas that he had registered as his residence in January 2014. It is undisputed that section 290.015 required him to reregister within five working days after his release. (§ 290.015, subd. (a).) The day after his release, he reported to the parole office, and a GPS tracking device was placed on his ankle. However, he did not reregister with the Salinas Police Department. On May 1, 2014, defendant was arrested for failing to reregister. He was wearing his GPS device at the time of his arrest. He admitted that he was aware of his obligation to reregister within five days of his release from jail and that he had not done so.
Defendant was charged by amended information with failure to register as a sex offender upon release from incarceration (§ 290.015). The amended information also alleged that he had suffered a prior strike conviction (§ 1170.12) and had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). He waived his right to a jury trial and elected to have a court trial.
Defendant testified on his own behalf at the trial. He claimed that he was unaware of his obligation to reregister after serving a jail term of 30 days or more. Defendant acknowledged that he had initialed a form informing him of that obligation when he reregistered in January 2014, but he maintained that he believed it applied only if he was a transient. He also blamed his parole agent and the sheriff’s department for failing to notify him of his obligation to reregister upon his release from jail. Defendant characterized his failure to reregister as a “complete oversight” on his part. Nevertheless, he admitted he was responsible for ensuring that he complied with his registration obligations.
Defendant’s trial counsel argued that there was a lack of compliance with section 290.017 when defendant was not notified upon his release of his registration obligations. The prosecutor argued that section 290.017 applies only “the first time when *4 they’re informed of their 290 status and upon their first introduction to what 290 means.” The court concluded that defendant’s testimony “doesn’t have the ring of truth” and deemed him not credible. It found him guilty and found the strike and prison prior allegations true.
The court denied defendant’s motion to strike the strike finding, but it struck the prison prior. Defendant was committed to state prison for a term of 32 months. He timely filed a notice of appeal.
II. Discussion A. Statute Requires Notice Defendant contends that section 290.017 required that he be given notice of his registration obligations upon his April 2014 release from jail. The Attorney General argues that section 290.017 does not require “repeated notifications upon each subsequent release,” which she contends “would be unnecessary, superfluous, and potentially confusing.”
Section 290.017, subdivision (a) provides: “Any person who is released, discharged, or paroled from a jail, state or federal prison, school, road camp, or other institution where he or she was confined, who is required to register pursuant to the Act, shall, prior to discharge, parole, or release, be informed of his or her duty to register under the Act by the official in charge of the place of confinement or hospital, and the official shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register under the Act has been explained to the person.” Subdivisions (c) and (d) of section 290.017 require notice to be given to those released on probation or conditional release. (§ 290.017, subds. (c), (d).)
Section 290.017’s express language does not limit its notification provisions to a section 290 registrant’s initial release from confinement. The legislative history of section 290.017 confirms that it is not so limited. Section 290.017 was enacted in 2007. Before section 290.017’s enactment, former section 290 required notification when a person was released from custody only after being “confined because of the commission” of an offense requiring registration . (Former § 290, subd. (b), italics added; Stats. 2006, ch. 538, § 500, p. 4368; Stats. 1979, ch. 944, § 8, p. 3255.) This is how the Attorney General would like us to read section 290.017. However, section 290.017 does not include this limiting language.
“Generally, a substantial change in the language of a statute or constitutional
provision by an amendment indicates an intention to change its meaning.” (
Mosk v.
Superior Court
(1979)
We reject the Attorney General’s argument to the contrary. While one might hope that such notification would be “unnecessary” since the section 290 registrant would be aware of each and every aspect of his or her registration obligations, a timely reminder of the precise nature of those obligations is neither “superfluous” nor “confusing.” This is particularly true where the precise parameters of a section 290 registrant’s obligations may change over time, as they did when section 290.015 was enacted. On its face, section 290.017 requires notification upon release and is not limited to the first such release. If the Legislature finds such a requirement too burdensome, it may add language to section 290.017, such as the language that appeared in former section 290, subdivision (b), limiting the notification obligation to a section 290 registrant’s first release from incarceration.
B. Impact of Violation of Section 290.017
Defendant claims that the failure to comply with section 290.017 when he was released from jail in April 2014 means that he cannot be convicted of failing to reregister as required by section 290.015. We find that the failure to comply with section 290.017 does not mean that defendant cannot be convicted of failure to reregister because section 290.017 is directory rather than mandatory.
“[T]he ‘directory’ or ‘mandatory’ designation does not refer to whether a
particular statutory requirement is ‘permissive’ or ‘obligatory,’ but instead simply
denotes whether the failure to comply with a particular procedural step will or will not
have the effect of invalidating the governmental action to which the procedural
*7
requirement relates.” (
Morris v. County of Marin
(1977)
“[A] violation of section 290 requires actual knowledge of the duty to register. A
jury may infer knowledge from notice, but notice alone does not necessarily satisfy the
willfulness requirement.” (
People v. Garcia
(2001)
Subdivision (l) of former section 290 had contained similar provisions since 1985. (Stats. 1985, ch. 1474, § 1, pp. 5403, 5406.) A similar provision was first added to former section 290 in 1984, then appearing in subdivision (k). (Stats. 1984, ch. 1419, § 1, pp. 4988, 4990; Stats. 1979, ch. 944, § 8, pp. 3254, 3257.) At the time former section 290 was amended to add the provisions for a limited defense, subdivision (b) of former section 290 required notification without providing for a defense based on a failure to notify. The 2007 legislation that created section 290.017 eliminated former section 290, subdivision (l).
The Legislature’s elimination of former section 290, subdivision (l)’s limited
defense coupled with its decision not to provide for such a defense as to either former
section 290, subdivision (b)’s notification requirement or section 290.017’s notification
requirement demonstrates that the Legislature did not intend for a failure to give those
more general notifications to provide a defense to a charge of failure to register. “ ‘Where
a statute referring to one subject contains a critical word or phrase, omission of that word
or phrase from a similar statute on the same subject generally shows a different
legislative intent.’ ” (
In re Young
(2004)
Since there was substantial evidence that defendant had actual knowledge of his duty to reregister after his April 2014 release from jail, the failure to notify him of his duty did not preclude a conviction for failing to reregister.
III. Disposition
The judgment is affirmed.
_______________________________ Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Márquez, J.
People v. Toloy
H041657
Trial Court: Monterey County Superior Court Trial Judge: Honorable Larry E. Hayes Attorney for Defendant and Appellant: Katherine Parsons Dwight
Under Appointment by the Sixth District Appellate Program Attorneys for Plaintiff and Respondent: Kamala D. Harris
Attorney General of California Jeffrey Laurence Senior Assistant Attorney General Eric Share Supervising Deputy Attorney General Alisha M. Carlile Deputy Attorney General People v. Toloy
H041657
Notes
[1] Subsequent statutory references are to the Penal Code.
[2]
Defendant’s appellate counsel originally filed a brief pursuant to
People v. Wende
(1979)
[3] Both statutes were enacted in 2007 by Senate Bill No. 172. Because the sections adding these statutes were amended into the bill just before its passage, the legislative history contains no bill analyses addressing the intended scope of the notification requirement.