James William WRIGHT, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party In Interest.
James William Wright petitions for a writ of prohibition or mandate, contending the superior court abused its discretion by refusing to grant his motion to set aside the information pursuant to Penal Code section 995.1 He claims charging him with a violation of section 290, subdivision (f) as a felony violated federal and state constitutional proscriptions against ex post facto punishment. We grant the writ.2
* * *
Wright was charged by complaint with a violation of section 290, subdivision (g)(2).3 The evidence at the preliminary hearing showed he registered as a sex offender with the Buena Park Police Department on August 15, 1994, giving an address in Buena Park. Department of Justice Agent Anthony Valente went to that address on March 23, 1995, and learned Wright had moved out in November 1994.
Valente was told he might find Wright at an address on South Knott Avenue in Anaheim, so he went there. When he arrived, he saw Wright inside and found Wright's open suitcase, but no documentation connecting Wright with the residence. Residents said that while Wright showered there occasionally, he did not live there.
Wright was held to answer, and an information was filed in superior court charging him in two counts with violations of section 290, subdivisions (g)(2) 4 and (f), the former allegedly occurring between January 1, 1995 and March 23, 1995, and the latter allegedly occurring between November 1994, and March 23, 1995. After Wright moved to set aside the information pursuant to section 995 and demurred to it, the district attorney sought to file an amended information alleging subdivision (a) and (f) violations between February 1, 1995 and March 23, 1995. The amended information was filed and the demurrer was taken off calendar. The district attorney conceded the section 995 motion as to the first count (subdivision (a)), and the motion was denied as to the second count.
Wright contends the trial court should have granted his section 995 motion as to the second count because it violated the federal and state constitutional prohibitions against ex post facto laws. “A statute must do one of three things to be an ex post facto law: (1) criminalize an act previously committed, which was innocent when done, (2) increase the punishment for a crime, after its commission, or (3) withhold a defense available according to the law when the act was committed.” (Mundy v. Superior Court (1995) 31 Cal.App.4th 1396, 1406, 37 Cal.Rptr.2d 568.) Wright asserts his case falls under the second prohibition, but in doing so he begs the question.
Violation of section 290 was previously a misdemeanor. It was amended in 1994, effective January 1, 1995, to mandate felony punishment if the person required to register had been convicted of certain felony sex offenses. (Stats.1994, ch. 864, No. 9 West's Cal. Legis. Service, pp. 3670–3671.) Wright had been convicted in 1987 of section 288a, a qualifying offense. An attempt to punish Wright as a felon for a violation of section 290 committed in November 1994 would arguably fall into the second category of ex post facto laws we mentioned. But the district attorney alleged in the amended information that the violation was committed between February 1, 1995 and March 23, 1995. If the offense was committed during that period, punishment would be for conduct occurring after section 290's amendment and would not be an ex post facto violation.
That, however, does not end our analysis. The evidence showed Wright left his prior residence in November 1994. Under subdivision (f), he was required to notify the Buena Park Police Department within 10 days, a period which would have expired, at the latest, some time in December 1994, before the statute was amended. The district attorney did not prove a violation of subdivision (f) in 1995, but he argues the offense is a continuing one, citing In re Parks (1986) 184 Cal.App.3d 476, 229 Cal.Rptr. 202.
In Parks, the petitioner moved to dismiss a complaint alleging a violation of section 290 on the ground the statute of limitations had run. He established a residence in Corona in 1981, failed to register, and a complaint was filed in 1984.5 (In re Parks, supra, 184 Cal.App.3d at p. 477, 229 Cal.Rptr. 202.) The Court of Appeal found the prosecution was proper because failure to register is a continuing offense. (Id. at p. 480, 229 Cal.Rptr. 202.)
Parks does not control Wright's case. Although the court referred to subdivisions (a) and (f) 6 (In re Parks, supra, 184 Cal.App.3d at p. 479, 229 Cal.Rptr. 202), it only discussed the violation in terms of a failure to register. Indeed, the court concluded the offense was continuous because the registration requirement was continuous. (Id. at p. 480, 229 Cal.Rptr. 202.) It never discussed the requirement of notifying the agency with whom the registrant is currently registered of a move. (Ibid.) The facts in Parks refer only to the failure to register, not failure to comply with subdivision (f).7
Subdivision (f) is analytically distinct from subdivision (a). While subdivision (a) speaks of a duty to be registered for life, subdivision (f) deals only with notifying an agency with whom one is currently registered of a move. That requirement arises only when and if the registrant moves and is satisfied by a single act. It is, to use the words of the Parks court, an “instantaneous” offense. (In re Parks, supra, 184 Cal.App.3d at p. 478, 229 Cal.Rptr. 202.) A violation occurs when the tenth day after the move expires, and the registrant has not given notice. It is complete at that point.8 The district attorney proved a violation in 1994, but it was not within the time period alleged. Wright's motion to set aside the information should have been granted.
Let a peremptory writ of mandate issue commanding the superior court to set aside its order denying Wright's motion pursuant to section 995 as to count 2 of the information, and to enter a new order granting the motion in its entirety. The alternative writ is discharged.
I disagree with my colleagues in their conclusion that Penal Code section 290, subdivision (f) 1 is not a continuing offense. This statute is quite clear—if one is a convicted sex offender, he must advise the authorities of his whereabouts once out of jail. If he moves, within 10 days he must report his new location. And this continues to be his responsibility no matter how many times he moves. Unfortunately, my colleagues have injected this law with an overdose of semantics.
The majority appears to be blinded by the concept of “residence” as being a street and number. A person can reside in a car, in a tent, in a park, under a bridge, indeed, even in a dumpster. The fact that a person's new location or residence is unconventional nonetheless is still a place where the person is living. As such, it should be reported to the proper authorities. Just because a former offender is “in the wind” does not exempt him from registering as he is required to do. It is just this situation of the homeless transient that the majority's holding will excuse from complying with the law. That was not the Legislature's intention.
Contrary to the majority's misimpression, In re Parks (1986) 184 Cal.App.3d 476, 229 Cal.Rptr. 202 is on all fours with the facts and issues before us. Although the Parks opinion initially focused on the language of just subdivision (a) 2 of the statute (see Parks, supra, 184 Cal.App.3d at p. 480, 229 Cal.Rptr. 202), it held the offense is a continuing one and included in that decision both subdivision (a) and subdivision (e).3 (Id. at pp. 480–481, 229 Cal.Rptr. 202 [“Section 290's purpose is to assure that persons convicted of one of its enumerated crimes ․ ‘shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.’․” (Emphasis added.) ].) Subdivision (e) was renumbered in January 1995 as subdivision (f)—the subdivision in question here—but remained substantially identical to the earlier version.
The plain language of the statute dispels any possible interpretation of its terms as an “instantaneous” offense: “If any person who is required to register ․ changes his or her residence address, the person shall inform, in writing within 10 days, the law enforcement agency ․ with whom he or she last registered of the new address․” The majority concludes that the offense is completed once the initial act of “moving” occurs. But what about the situation where the registered offender packs up, but has no new residence for an unknown period of time? Does this eliminate any responsibility to inform the authorities of his having left his last address? From the evidence at the preliminary hearing in this case, that is exactly what happened with Wright. He now argues his offense was “completed” 10 days after he moved out of his last known address. He had, as yet, not established a new residence. But the prosecution argues just as reasonably that the appropriate calculation is to work back 10 days from the date of discovering him at a new location. These two interpretations from the same statute are possible because the Legislature chose the specific language which would cover all situations, whether the registrant moves from one residence to another, or just leaves one residence for transiency of an unknown duration. The offense must be a continuing one; otherwise, it would only apply to the registrant who “moves” directly into a new residence from an old one.
I would deny the petition.
1. All statutory references are to the Penal Code unless otherwise specified.
2. As we shall explain, we do so on other grounds.
3. As Wright notes, section 290, subdivision (g)(2) specifies a punishment, but does not define a substantive crime. According to Wright, the complaint set forth factual allegations describing a violation of section 290, subdivision (f).Section 290, as it read when the complaint was filed on May 3, 1995, and as it reads now, provides in relevant part: “(a)(1) Every person [convicted of certain sex offenses], 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, or the sheriff of the county if he or she is domiciled in an unincorporated area ․ within 14 days of coming into any city, county, or city and county in which he or she temporarily resides or is domiciled for that length of time. The person shall be required annually thereafter, within 10 days of his or her birthday, to update his or her registration ․ [¶] (f) 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 ․ [¶] (g) ․ (2) ․ [A]ny person who has been convicted of [certain sex crimes], and who is required to register under this section who willfully violates this section is guilty of a felony․”
4. The information, referring to subdivision (g)(2), described a violation of subdivision (a).
5. The statute of limitations is one year. (§ 802.)
6. When Parks was decided, subdivision (f)'s requirement of notifying the law enforcement agency with whom the registrant is currently registered of a move was contained in subdivision (e). For clarity, we will refer to it as subdivision (f).
7. In making this distinction from Parks, we do not imply an adoption of its conclusion subdivision (a) defines a continuing offense. In reaching its result, the Parks court relied on language in Toussie v. United States (1970) 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 for the proposition an offense may be considered “continuing” for statute of limitations purposes if “the nature of the crime is such that Congress must assuredly have intended that it be treated as a continuing one.” (Id. at p. 115, 90 S.Ct. at p. 860.) The Parks court concluded the Legislature must have intended that the failure to register be treated as a continuing offense. (In re Parks, supra, 184 Cal.App.3d at pp. 480–481, 229 Cal.Rptr. 202.) But the Toussie court, obviously using the same standard, found a failure to register for the draft within five days after one's eighteenth birthday was not a continuing offense. (Toussie v. United States, supra, 397 U.S. at pp. 119–122, 90 S.Ct. at pp. 862–64.) The offenses in Parks and Toussie are analytically indistinguishable.The Parks court also relied on United States v. Bailey (1980) 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 for the proposition that “given the continuing threat to society posed by an escaped prisoner, Congress must have intended [that escape be treated as] a continuing offense.” (In re Parks, supra, 184 Cal.App.3d at p. 481, 229 Cal.Rptr. 202.) The Parks court analogized that continuing threat to the one posed by an unregistered sex offender, concluding section 290, subdivision (a) defines a continuing offense. (Id. at pp. 480–481, 229 Cal.Rptr. 202.) But Bailey dealt with application of the duress defense. The Supreme Court pointed out that it was not dealing with a statute of limitations issue, where restraint in labeling offenses as continuing is justified by “the tension between the doctrine of continuing offenses and the policy of repose embodied in statutes of limitations.” (United States v. Bailey, supra, 444 U.S. at pp. 413–414, 100 S.Ct. at p. 636.) The court observed, “This tension is wholly absent where, [as in Bailey ], the statute of limitations is tolled for the period that the escapee remains at large.” (Id. at p. 414, 100 S.Ct. at p. 636, fn. omitted.)Perhaps the Parks court would have been on stronger ground by resting its decision on a tolling theory, to which it alluded but on which it did not choose to rely. (In re Parks, supra, 184 Cal.App.3d at p. 481, fn. 9, 229 Cal.Rptr. 202.) As noted, however, we need not decide whether the Parks court correctly construed subdivision (a) as creating a continuing offense. And, even if we agreed with that proposition, we would not be bound by that analysis in determining whether charging a section 290 violation that began in 1994 as a felony would violate the prohibition against ex post facto laws. Crimes have often been treated as both instantaneous and continuous, depending on the interests involved. (Compare, e.g., People v. Brady (1987) 190 Cal.App.3d 124, 132, 235 Cal.Rptr. 248 disapproved on other grounds in People v. Montoya (1994) 7 Cal.4th 1027, 1040, 31 Cal.Rptr.2d 128, 874 P.2d 903 [“for purposes of culpability as a principal, a crime is completed when all of the statutory elements of the offense have been fulfilled by the perpetrator”] with People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 7, 282 Cal.Rptr. 450, 811 P.2d 742 [“[T]he offense does not end [for purposes of determining aider and abettor culpability] until all of the acts that constitute [the offense] have ceased.”]; and see People v. Scott (1985) 170 Cal.App.3d 267, 271, 215 Cal.Rptr. 618 [comparing when a robbery is completed for felony-murder purposes with when it is complete for accessorial liability purposes].)Any reason for treating a section 290 violation as continuous for statute of limitations purposes, might not apply to an ex post facto analysis. One of the purposes for the ex post facto prohibition is “to restrict ‘governmental power by restraining arbitrary and potentially vindictive legislation’ [citation]. The clause thus protects defendants from retrospective legislation with a punitive effect or purpose.” (People v. McVickers (1992) 4 Cal.4th 81, 85, 13 Cal.Rptr.2d 850, 840 P.2d 955.) That purpose would not be served by giving prosecutors the option of charging a section 290 offense that arose before punishment increased as a felony by picking some date after the punishment was increased. Such an option could lead to arbitrary, unequal, and even vindictive charging. Of course, we do not suggest that was the case here. Indeed, as noted, we need not reach the issue on the record presented.
8. Our dissenting colleague accuses us of being “blinded by the concept of ‘residence’ as being a street and number.” (Dis. opn. at p. 198.) To the contrary, our reasoning assumes everyone must reside somewhere, even if the “residence” does not have a street address. We do not construe the term “new address” as used in subdivision (f) as requiring a street address. But even if we are incorrect in this assumption, and the crime is committed 10 days after the registrant has a new street address and fails to notify the prior agency, it is still an instantaneous offense.In any event, this case does not create any practical obstacle to prosecuting errant section 290 registrants. For unknown reasons, the district attorney opted not to proceed under subdivision (a), but in virtually all other cases that will be an option. And the only reason the district attorney failed on the subdivision (f) count is he proved a 1994 violation but tried to squeeze a felony out of it by alleging it occurred in 1995.
1. Penal Code section 290, subdivision (f) states, “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. The law enforcement agency or agencies shall, within three days after receipt of this information, forward it to the Department of Justice. The Department of Justice shall forward appropriate registration data to the law enforcement agency or agencies having local jurisdiction of the new place of residence.” All further section references are to the Penal Code, unless otherwise stated.
2. In 1986, section 290, subdivision (a) stated, “Any person who, since July 1, 1944, has been or is hereafter convicted in this state of [any listed sexual offense] or any person who since that date has been or is hereafter convicted of the attempt to commit any of the above-mentioned offenses; ․ shall, within 30 days after the effective date of this section or within 14 days of coming into any county or city, or city and county in which he or she temporarily resides or is domiciled for that length of time, register with the chief of police of the city in which he or she is domiciled or the sheriff of the county if he or she is domiciled in an unincorporated area.”
3. The version of subdivision (e) which was effective at the time of the Parks decision stated, “If any person required to register hereunder changes his residence address he shall inform, in writing within 10 days, the law enforcement agency with whom he last registered of his new address.”