PEOPLE v. VELASCO

Reset A A Font size: Print

Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Mario VELASCO, Defendant and Appellant.

No. B113974.

Decided: September 09, 1998

John L. Staley, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, and Donald J. Oeser, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant, Mario Victor Velasco, appeals from a judgment of conviction for failing to register as a sex offender.  (Pen.Code, § 290, subd. (g)(2).) 1  He appeals, claiming:  (1) the trial court erroneously instructed the jury regarding the definition of “residence” for purposes of section 290;  (2) the trial court erroneously admitted inflammatory and prejudicial evidence suggesting appellant was evading the registration requirement of section 290 in order to molest a minor female;  (3) the trial court erroneously refused to allow appellant to stipulate to the existence of his prior sex offense conviction;  and (4) the sentence should be vacated and the case remanded for a new sentencing hearing, claiming the same prior felony conviction cannot be used both as a strike under the Three Strikes sentencing law and as an element of a violation of the sex offender registration law.   We find no prejudicial error and affirm.

FACTS AND PROCEEDINGS BELOW

In 1994 appellant was convicted of forcible rape of a minor child for which he received a prison term.   On December 21, 1995, appellant was released on parole.   Parole Agent Michele Woods interviewed appellant upon his release and reviewed with him the conditions of his parole.   Appellant was ordered not to reside with minor children and to register as a sex offender under section 290, among other conditions of his parole.   Agent Woods told appellant he was not allowed to live with his girlfriend, Toni Ibarra, at her house on Cambridge Lane in Palmdale because she had a minor daughter who lived with her.   Appellant signed the conditions of parole indicating he understood that if he changed his residence he would have to re-register the new address within ten days.

On February 1, 1996, appellant met with James Chormicle, the parole agent assigned to supervise him.   At this meeting, Agent Chormicle discussed the registration requirement with appellant.   Agent Chormicle specifically told appellant he had to register as a sex offender within ten days of any move.

In March of 1996, Barbara Tustison, a resident of the Alpine Trailer Park in Palmdale, noticed appellant and another man move a trailer into space number twenty-seven of the Alpine Trailer Park. Tustison saw appellant once or twice a month after he moved in, and noticed he usually stayed there for approximately half an hour.   She observed appellant stay overnight in his trailer once or twice.   In total, Tustison saw appellant at his trailer at Alpine Trailer Park once in March, once in April, twice in May, twice in June, a couple of times in July, and once in September.

On April 22, 1996, appellant registered his residence as the trailer parked in space twenty-seven at the Alpine Trailer Park. Appellant did not register at any other address after that date.

On April 27, 1996, appellant and his girlfriend signed a lease as co-tenants of the Cambridge Lane house.   At that time appellant's girlfriend spoke to the landlady Sandra Avery about appellant moving into the Cambridge Lane house.   Avery believed appellant had moved into the Cambridge Lane house before he signed the lease as a co-tenant.   Appellant's girlfriend told her in late March or early April of 1996, appellant had moved into the Cambridge Lane house and had left only a few things in his trailer at the Alpine Trailer Park. Appellant's girlfriend told Avery she was happy to have appellant at the Cambridge Lane house because then she and her daughter were not alone.

Beginning on April 20, 1996, until May 21, 1996, Parole Agent Chormicle made several unsuccessful attempts to contact appellant at his trailer at Alpine Trailer Park at various times during the day and early evening hours.   Agent Chormicle left his business card on at least two separate occasions in the door normally used to enter appellant's trailer.   Each time Agent Chormicle returned to appellant's trailer after leaving his business card in the door, Agent Chormicle found the business card still there.   The second time Agent Chormicle left his card in appellant's trailer door, the card was not removed until Agent Chormicle returned to the trailer five days later, on his third visit to appellant's trailer within those five days.

Agent Chormicle met appellant at his trailer at Alpine Trailer Park on May 21, 1996, at appellant's request.   Appellant told Agent Chormicle he was still living in his trailer at the Alpine Trailer Park. After this meeting with appellant, Agent Chormicle drove to a hilly location about half a mile away from the Alpine Trailer Park. He waited there to see if appellant would leave his trailer.   At 9:25 p.m. Agent Chormicle watched appellant leave his trailer and drive directly to his girlfriend's house at Cambridge Lane where he parked his vehicle and entered the house.

On May 24, 1996, Agent Chormicle went to the Cambridge Lane house and saw appellant's work truck parked in front of the house.   Two days later Agent Chormicle returned to the Cambridge Lane house in the morning and again saw appellant's work truck.   He returned to the Cambridge Lane house later the same afternoon and saw appellant's work truck still there.

On June 5, 1996, at 9:00 a.m. Parole Agent Chormicle, and others, searched the Cambridge Lane house.   Appellant was present at the time of the search.   In the master bedroom of the Cambridge Lane house were two closets, one of which contained approximately ten to fifteen articles of men's clothing.   Appellant told Agent Chormicle the clothing was his.   He explained his clothing was there because he showered at the Cambridge Lane house.   Appellant's girlfriend also stated appellant showered there because his trailer at the Alpine Trailer Park did not have hot water.

The closet also contained a white plastic box.   Inside the box were numerous pieces of paperwork with appellant's name on them addressed to the Cambridge Lane house.

A briefcase was also found in the master bedroom.   The briefcase contained miscellaneous paperwork addressed to appellant at the Cambridge Lane address.   Included in the paperwork was a check, a check receipt, a checkbook, and a letter or document from “Entertainment” with appellant's name and the Cambridge Lane house address on it.

After Agent Chormicle completed the search of the Cambridge Lane location he arrested appellant.

On June 6, 1996, Agent Chormicle went to appellant's trailer at the Alpine Trailer Park. Inside the trailer, he found one pair of pants and one shirt.   He found no other clothing.

Several witnesses testified on appellant's behalf at trial.

Appellant's girlfriend, Toni Ibarra, stated appellant did not live with her at the home she rented on Cambridge Lane. Between March and June 5th of 1996, she stated appellant would occasionally stay over on weekends when only she and appellant were present in the house.   She further stated appellant frequently left his truck parked at her home on Cambridge Lane when he carpooled to work.   She stated she had appellant's name put on the lease for the Cambridge Lane home because appellant planned to move in some day, when she gave custody of her daughter to her ex-husband, and she wanted appellant to have some responsibility for the Cambridge Lane house.   Although appellant did not live at the Cambridge Lane house after signing the lease, appellant's girlfriend stated he did help her pay the rent.

Appellant's girlfriend's ex-husband, Henry Ibarra, also testified.   He stated that in the first half of 1996, his ex-wife Toni lived at the Cambridge Lane house with their son and daughter.   For about five years, Henry had been picking up their daughter from the Cambridge Lane house after she came home from school, and kept her with him until Toni returned from work, at which time he dropped her off at the Cambridge Lane house.

Henry saw appellant approximately two or three times a week at the Cambridge Lane house.   Henry had expressed his concerns to his ex-wife Toni about appellant's presence at the Cambridge Lane house when his daughter was present.   When he dropped his daughter off at the Cambridge Lane house and saw appellant there, he waited for appellant to leave before he left because he was very protective of his daughter.   Henry had been clear with his ex-wife Toni there were to be no men at the Cambridge Lane house when he was not there and also no man would live with her at the Cambridge Lane house.   Additionally, Henry stated there were times when he noted appellant's work truck parked outside the residence when appellant was not in fact inside the residence.

Appellant's co-worker, Jesse Uribe, also testified.   Uribe worked with appellant between March and June of 1996.   They usually carpooled to work ninety percent of the time.   According to Uribe they usually met at the road outside the Alpine Trailer Park, although once or twice they met at the Cambridge Lane house.

Appellant was charged with failing to register a change of address in violation of the sex offender registration statute.  (§ 290, subd. (g)(2).)   The information also alleged appellant had suffered a prior serious or violent felony conviction pursuant to section 1170.12, subdivisions (a)-(d), and section 667, subdivisions (b)-(i), making this appellant's second strike if convicted.

The jury convicted appellant of failing to register his residence address.   Appellant subsequently admitted the truth of the prior felony conviction allegation.

Prior to sentencing, appellant filed a motion for a new trial which was denied.   On May 9, 1997, the trial court sentenced appellant to two years in state prison, and as a second strike, doubled the two year base term for a total term of four years.   The trial court imposed and stayed an additional one year term for the prior prison term enhancement allegation.

Appellant appeals from the judgment of conviction.

DISCUSSION

I. ERROR IN GIVING A JURY INSTRUCTION DEFINING “RESIDENCE” WAS HARMLESS.

Appellant contends the trial court committed prejudicial error in giving the jury a flawed definition of “residence” because the trial court's definition equated “domicile” with “residence,” and as defined, permitted an individual to have only one “residence” for purposes of the sex offender registration statute.

The sex offender statute, section 290, subdivision (a), subsection (1), as it read in 1996, stated in relevant part, “every person described in paragraph (2), for the rest of his or her life while residing in ․ California, shall be required to register with the chief of police of the city in which he or she is domiciled․”

Paragraph (2) of subdivision (a) of section 290 lists various offenses which trigger the registration requirement of the statute for persons convicted of the specified crimes.   The enumerated offenses are sex offenses, including forcible rape, the crime for which appellant had been convicted.

In 1996, section 290, subdivision (f) stated “if any person who is required to register pursuant to this section changes his or her residence address, the person shall inform, in writing within 10 days, the law enforcement agency or agencies with whom he or she last registered of the new address․”

Finally, in 1996, section 290, subdivision (g), subsection (2) stated any person who is required to register under this section based on a felony conviction “who willfully violates any requirement of this section ․ is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years.”

In attempting to formulate a definition of “residence address” to give to the jury, the trial court and counsel discussed various interpretations of the term as used in the sex offender registration statute.   The trial court observed the purpose of the sex offender registration statute was “to ensure that persons convicted of the crimes enumerated [ ] shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.”   The trial court also noted, throughout the sex offender registration statute, the Legislature had used both the terms “domicile” and “residence,” and this demonstrated the Legislature knew how to distinguish between the two.   Further, the trial court noted in subsection (f) and subsections (b) and (c), the Legislature spoke in the singular of “residence address,” and did not speak of “residence addresses.”   The court also noted at the very end of subsection (a) the two terms used are “temporarily reside” and “domicile,” making a distinction between the two, but not necessarily making a distinction between “domicile” and “residence.”

Ultimately, the trial court instructed the jury the term “residence address,” for purposes of the sex offender registration statute, is “the one residential location with which a person is considered to have the most settled and permanent connection.   It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in times of rest.”   Further, the trial court instructed “[a] person cannot have more than one ‘residence address' for purposes of” the sex offender registration statute.

Appellant contends this instruction constituted prejudicial error both because it was unnecessary and because it equated the term “domicile” with “residence,” limiting an individual to one residence address under section 290.

 We agree with appellant the trial court committed error in instructing the jury with a definition of “residence address.”   As the court in People v. McCleod (1997) 55 Cal.App.4th 1205, 1219, 64 Cal.Rptr.2d 545 held, the term “residence” has no technical legal meaning and therefore requires no definition or special instruction.   However, we disagree with appellant the instruction was erroneous because it defined “residence” so as to restrict him to having a single residence address.

In McCleod the defendant was evicted from the residence he shared with his mother on August 21, 1995.   He claimed he either continued to sleep at the vacated apartment, or at his girlfriend's house, or stayed on the streets, until he moved to a new location within the same city on October 8, 1995.   In the interim, however, he was stopped twice by the police.   When stopped on September 1, 1995, the defendant gave the officer a nonexistent address.   When stopped on October 13, 1995, the defendant told the officers his correct name as well as his new residence address.   He was arrested at his new residence address and charged with failing to register as a sex offender.   The jury convicted the defendant as charged.

On appeal the defendant argued the trial court had a sua sponte duty to instruct the jury with a definition of the term “residence” as the term is used in section 290.   Prior to deliberations jurors submitted a question regarding the legal definition of “residence” and inquired how a homeless person could register.   They returned their verdict before the court and counsel could formulate a response.   Based on these questions, and the evidence during the period he had no residence to register, he claimed the jury should have been told the term “residence” was the legal equivalent of “domicile” so as to permit a finding he had not changed his “domicile” because he had stayed within the same city.   The appellate court rejected these contentions and held no definition was required.  (55 Cal.App.4th at pp. 1218-1219, 64 Cal.Rptr.2d 545.)

The McCleod court noted the term “residence” “is a term of varying import and its statutory meaning depends upon the context and purpose of the statute in which it is used.”  (55 Cal.App.4th at p. 1217, 64 Cal.Rptr.2d 545, citing Myers v. Carter (1960) 178 Cal.App.2d 622, 625, 3 Cal.Rptr. 205.)   The court noted there was no authority for the defendant's proposition the term “residence” required any definition for the jury, let alone one which equated “domicile” with “residence.”  “We have been cited no California decision which holds the term ‘residence’ as used in section 290 has a technical meaning in law such that it must be expressly defined for the jury.   Nor has the Legislature found the need to define that term for purposes of section 290, which was enacted in 1947 and has often been amended.”   (Ibid.)

The court's conclusion was bolstered by an Idaho Supreme Court decision which addressed use of the terms “residence” and “domicile” in that state's sex registration statute.   In State v. Zichko (1996) 129 Idaho 259, 923 P.2d 966, 971 the court found those terms to be of common usage, sufficiently and generally understood by persons of ordinary intelligence as “connot[ing] more than a passing through or presence for a limited visit” and that residence need not be further defined for the jury.  (923 P.2d at pp. 969, 971.)

Persuaded by the analysis in State v. Zichko, supra, 129 Idaho 259, 923 P.2d 966 the McCleod court held “We believe the manifest purpose of section 290 is therefore similar to that of Idaho's sex registration statute, and is best subserved by construing ‘residence’ in section 290, subdivision (f) as likewise referring to a term so easily understood by a person of common intelligence ‘connot[ing] more than a passing through or presence for a limited visit[ ]’ that further definition is not required․  Neither the courts nor the Legislature has seen the need to further define the common term of residence for section 290.   Nor do we.”  (55 Cal.App.4th at pp. 1218-1219, 64 Cal.Rptr.2d 545.)

Although the McCleod court did not need to specifically address whether “domicile” has the same meaning as “residence” for purposes of section 290, that court admonished “any construction of the terms in subdivision (f) of the statute which would limit the reregistration requirement for residence address changes to when an offender changes his legal domicile would defeat the statute's purpose of readily locating offenders for law enforcement surveillance.”  (55 Cal.App.4th 1205, 1219, fn. 8, 64 Cal.Rptr.2d 545.)

We agree, “domicile” is too broad a concept to effectively comply with the purposes of the sex offender registration statute-being able to quickly find sex offenders and effectively monitor them-because “domicile” may include a larger area than the term “residence” implies.  (See e.g., Whittell v. Franchise Tax Board (1964) 231 Cal.App.2d 278, 284, 41 Cal.Rptr. 673 [distinguishing the terms in the context of taxation statutes].)   The Legislature's 1997 amendments to section 290 eliminate this potential ambiguity.   In the same year as the McCleod decision, the Legislature amended section 290, subdivision (a)(1) to eliminate any reference to “domicile.”

We are persuaded by the reasoning in People v. McCleod and adopt its analysis.   Consequently we conclude it was error for the trial court to provide the jury with an instruction defining “residence” when it is not a term with technical legal meaning.   However, we conclude the error was harmless.   Under People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 error is prejudicial when it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error.

In the present case, the instruction given asked the jury to determine if appellant failed to register at the place at which he had the “most settled and permanent connection.”   The jury found appellant had violated the statute requiring he register his “residence address.”   Because appellant had registered the Alpine Trailer Park address and yet the jury found he had violated the registration statute, the jury necessarily found the address to which appellant had the “most settled and permanent connection” was the Cambridge Lane house.   Thus, whether or not a registrant could have registered at two addresses under the sex offender registration statute, or only one, the jury in this case found it was the Cambridge Lane house to which appellant was the most connected and the address which he had not registered in direct violation of section 290.

Nor was the instruction appellant could only have one residence prejudicial.   Assume a person subject to the registration law indeed could have two legitimate residence addresses-for instance, if he or she worked in one city three days a week and another the other three or four, and lived in different homes in each.   That person would have a duty to register both residences.   It would be inconsistent with the fundamental purpose of this law to allow a sex offender to have two residences, one registered and one unregistered.   Any such construction of the law would be absurd on its face.   Under any reasonable construction of the law appellant had a duty to register the Cambridge Lane address, either as his only true residence address or as one of two residences he maintained.   And either way, he violated the registration law by failing to register that address.

The purpose of the registration requirement of section 290 “is intended to promote the state interest in controlling crime and preventing recidivism in sex offenders.   As [the Supreme Court] has consistently reiterated:  The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.   Plainly, the Legislature perceives that sex offenders pose a continuing threat to society and require constant vigilance.

“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.   Supplemental address change information helps law enforcement agencies keep track of sex offenders who move within the same city or county or are transient.   In large cities such as Los Angeles or huge counties like San Bernardino, where offenders can easily relocate without reregistering, section 290(f) seeks to prevent them from disappearing from the rolls.   Ensuring offenders are readily available for police surveillance depends on timely change-of-address notification.   Without it law enforcement efforts will be frustrated and the statutory purpose thwarted․”  (Wright v. Superior Court (1997) 15 Cal.4th 521, 527, 63 Cal.Rptr.2d 322, 936 P.2d 101, internal citations and quotation marks omitted.)

Based on the Legislature's intended purpose of “ensuring offenders are readily available for police surveillance,” appellant could not have escaped the requirement he register all addresses at which he claimed to maintain a residence.   This he did not do.   We therefore conclude the trial court's instruction to the jury defining “residence address” for purposes of the sex offender registration statute was harmless error.

II.-IV.**

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

JOHNSON, Associate Justice.

LILLIE, P.J., and WOODS, J., concur.

Copied to clipboard