People v. McCleod (55 Cal. App. 2d 1205, 1997)

Opinion

HUFFMAN, J.

A jury found Billy Cornell McCleod guilty of failing to reregister as a sex offender in writing, within 10 days of “any change in his residence address, in violation of Penal Code[] section 290[, subdivision] (a) (g)(2).” In a bifurcated court trial, the court found true McCleod had previously suffered a serious felony within the meaning of the three strikes law (§ 667, subds. (b)-(i)) and had served a prior prison term (§ 667.5, subd. (b) ). The court sentenced McCleod to a total five-year term, consisting of a two-year midterm doubled to four years under the three strikes law, plus a consecutive one-year term for the prior prison enhancement.

McCleod appeals, contending the trial court prejudicially instructed the jury on the elements of a violation of section 290 by failing to define the term “residence” and by misinstructing on the reporting requirement of subdivision (f) of that section, that the court abused its discretion by permitting the jury to continue deliberations while the court and counsel endeavored to define “residence” in response to a jury question in violation of section 1138, that there was insufficient evidence to support his conviction for failing to reregister within the meaning of section 290, subdivision (f), and that remand for resentencing is necessary so the trial court may exercise informed discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628].

We shall conclude the trial court properly instructed the jury on the elements required for conviction of a section 290, subdivision (f) offense, that McCleod waived any possible section 1138 violation, that sufficient evidence supports McCleod’s conviction in this case, and remand under Romero is not warranted on this record.

Factual and Procedural Background at Trial

The Prosecution Case

It was stipulated that McCleod “is required to register as a sex offender with the chief of police of the city in which he’s domiciled pursuant to Penal Code section 290” and that he “is required to register as such because he was convicted of an offense which required registration as a sex offender pursuant to [that section].”

According to police records, McCleod had listed his San Diego residence address as 4180 30th Street on March 15, 1991. On January 26, 1994, he changed his residence address to apartment No. 15 at 4218 49th Street, and there had been no written notification of any change of residence address since that time.

A San Diego police detective testified that if a person required to register under section 290 moves within the City of San Diego, that person is required to notify the San Diego police within 10 days “of his [or her] new address in writing.” The detective explained the difference between section 290’s registration requirement to register within 14 days of moving to a new city or jurisdiction and the additional requirement of reregistering whenever there is a change of address within the same jurisdiction or city, which then requires the notification of the change to be in writing with the offender’s signature within 10 days. The detective noted that a specific form provided to people who are required to register under section 290 for registration of “change of address” also “informs [that person] of all the legalities and technicalities of [the] registration requirements.” McCleod had filed his address change to the apartment No. 15 address twice: once on the specific change of address form and again in September 1994 on the standard section 290 registration form.

The property manager of the apartment complex testified McCleod and his mother lived in apartment No. 15 from about January 4, 1994, until August 21,1995, when they were evicted. The manager had inspected the apartment on August 21 for cleanliness and damage and found it completely vacant. The manager, who visits the complex five days a week, although rarely at night, said no one has lived in or moved into apartment No. 15 since its vacancy on August 21, 1995.

About 6:45 a.m. on September 1, 1995, San Diego Police Officer Steven Skinner contacted McCleod in an alley near 4800 Orange Avenue. McCleod was pushing a barbecue he claimed he was taking from his girlfriend’s to his mother’s home. In response to questions, McCleod gave Skinner his correct name and told him his home address was 4161 45th Street. The next day Skinner ran a computer check on the information received from McCleod and discovered McCleod was a “290 sex registrant” with the apartment No. 15 address listed as his last known registered address.

In an attempt to locate McCleod, Skinner went that same day to the apartment No. 15 address, sometime between the early morning and the early afternoon. He received no response to his knocks on the door and saw through a window there was no furniture in the front room. Skinner did not obtain any information as to where McCleod was currently living from either the neighbors or the manager.

Skinner next tried to find the address McCleod had given him, but discovered it did not exist. Skinner did not find McCleod living in that area and did not see him when he walked around that neighborhood.

At 4 a.m. on October 13, 1995, two other San Diego police officers contacted McCleod near the 4800 block of Orange Avenue. In response to questioning, McCleod told the officers his correct name and gave them 4166 49th Street as his address. Although one officer identified the address on the field interview report as a new sex registration address, McCleod did not tell the officers he was a sex offender registrant. Even though the officers had some information about McCleod before they contacted him, they did not arrest him at that time because a warrant check did not turn up his name. The next evening when the officers came on duty, they drove to the address McCleod had given them and arrested him.

The Defense

McCleod testified in his own defense. He acknowledged he was required to register as a sex offender and that he had done so more than once. He had registered first for the 30th Street address and then for the apartment No. 15 address. He had moved to the address where he was arrested on October 8, 1995.

McCleod admitted he had been evicted from apartment No. 15, along with his mother, on August 21,1995, but claimed he slept there until he moved on October 8. McCleod testified he stayed overnight in the back room of apartment No. 15 because he did not want the apartment manager to see him and one could look in the window into the front room. He used a key that he had not turned in at the time of the eviction to get into the apartment. He stayed there because he had no place to go while he tried to find places for his mother and his girlfriend, who was also being evicted from the same complex.

McCleod claimed he gave the police his new address when he was contacted on October 13, 1995. Although he thought he had about five more days to register the change of address from his October 8 move, the officers told him to register his new address within fourteen days. The officers came to his house at midnight the next day and arrested him.

On cross-examination, McCleod admitted he had suffered a prior felony offense, that he knew he had a lifetime requirement to register as a sex offender because of such conviction, that apartment No. 15 was not his legal residence, and that he was trespassing when he slept there after the eviction. He claimed he sometimes forgot about the registration requirement, explaining that circumstances like the eviction caused him much confusion because he was trying to find places to live for his mother and girlfriend as well as himself.

During the time between the eviction and moving into a house on October 8, 1995, McCleod kept some clothes at his girlfriend’s apartment and his large items at his mother’s place. He slept at his girlfriend’s apartment twice a week and at apartment No. 15 the other nights. In the daytime he was “hanging on the street.”

McCleod denied telling Skinner on September 1, 1995, that he was living at the 4161 45th Street address. He claimed the address, which he probably mixed up, was his mother’s new address and the place where he was taking the barbecue when Skinner contacted him. He did not have any contact with Skinner when Skinner came to apartment No. 15 on September 2, 1995. McCleod told the police officers on October 13, 1995, that he had forgotten to register a change of address and believed he no longer needed to do so because he had just been paroled.

On recross-examination, McCleod conceded he “wasn’t actually living” in apartment No. 15, but was just sleeping there “occasionally.” He admitted that if a police officer came to the door of apartment No. 15 while he was there, he would not answer the door; he did not want anyone to know he was living there.

Further Trial Proceedings

Jury instructions were discussed outside the jurors’ presence. It was agreed to give an instruction prepared by the prosecutor and modified at the request of defense counsel for the alleged section 290 crime, along with a definition of “willfully” to fully define that crime. At the conclusion of all testimony, the court instructed the jury on the current crime as follows: ’’Defendant is accused in Count One of the information of having violated Penal Code section 290 [, subdivision (f)], a crime. [^0 Every person who is required to register as a sex offender pursuant to Penal Code section 290 and willfully fails to inform in writing, within [10] days, the law enforcement agency or agencies with whom he last registered of any change of his residence address is guilty of a violation of Section 290 [, subdivision (f)] of the Penal Code, a crime. [U In order to prove such crime, each of the following elements must be proved: [H 1. A person is required to register as a sex offender pursuant to Penal Code section 290; and [