PEOPLE v. GARCIA (1999)

A jury convicted appellant Jose Juan Garcia of failing to register as a sex offender.  (Pen.Code, § 290, subds.(a)(1), (g)(2).) ¹  Appellant admitted two prior “strike” convictions (§ 1170.12, subd. (a)) and one prior prison term enhancement (§ 667.5, subd. (b)).  The court struck one of the “strike” allegations, as well as the prison term enhancement, and sentenced appellant to a total term of six years in prison (twice the aggravated three-year term).

On appeal, Garcia contends:  (1) the trial court erred because it failed to instruct that appellant had to have “knowledge” of the registration requirement;  (2) defense counsel was ineffective because he should have argued appellant was not constitutionally convicted of a registrable offense;  (3) the evidence was insufficient to support the conviction for failing to register;  (4) the trial court improperly used an element of the section 290 offense (that appellant had been convicted of violating section 288, subdivision (a)) to enhance the punishment for that offense under the Three Strikes law;  and (5) defense counsel was ineffective because he failed to object when the court imposed the aggravated term at sentencing.

We affirm.

I

FACTS

Appellant stipulated he had been convicted of two unspecified felony sexual offenses on December 4, 1990,² which required that he register as a sex offender pursuant to section 290, subdivision (a)(1).³  Appellant also admitted he had never registered as a sex offender after his release from prison.   Appellant's defense was that he was not aware he was required to register as a sex offender and no one had advised him of that requirement.

Appellant was charged with the underlying sex offenses in 1990.   The charging complaint included a paragraph advising appellant he would be required to register pursuant to section 290 if he were convicted.   Appellant testified he had not seen the complaint and that no one read the registration advisement to him.

On December 4, 1990, appellant pleaded no contest in the Santa Barbara Superior Court to the two sex offenses.   During voir dire, the prosecutor stated:  “You will be required to register under Penal Code Section 290.   Do you understand that?”   Appellant replied:  “Yes.” Although appellant stipulated that this exchange had occurred, he nevertheless testified no one had advised him of the registration requirement before he changed his plea.   He claimed he did not remember anything that happened the day he pleaded no contest, and did not remember if the judge told him he would have to register under section 290.   He stated his attorney advised him to answer “yes” to all of the questions unless the attorney told him not to.

The court sentenced appellant to prison for the two sex offenses.   On December 9, 1993, just before he was released on parole, appellant signed, dated, and affixed his fingerprint to a “Notice of Registration Requirement.”   That document states:

“I have been notified of my duty to register as a convicted sex offender pursuant to Section 290 of the California Penal Code. [¶] I understand that my responsibility to register as a sex offender is a lifetime requirement.  [¶] I must register within 14 days of coming into any city, county or city and county in which I am domiciled with a law enforcement agency having jurisdiction over my place of residence, and I must upon changing my residence inform in writing within ten days the law enforcement agency with which I last registered.”

In addition, the prison official who gave appellant this notice also signed it under a certification which states:  “I certify that I notified the individual described above of his or her duty to register.”

Although appellant said he remembered meeting with a prison official and signing a number of documents before he was released, he testified he did not read the Notice of Registration Requirement before he signed it.   He also claimed no one read this document to him or explained his duty to register.   Appellant explained that when he signed the Notice, his counselor, Mr. Robles, handed him “many, many papers to sign,” which he didn't have time to read but just signed.

After he was released from prison, the Immigration and Naturalization Service (INS) deported appellant to his native Mexico ⁴ in February 1994.   Appellant returned illegally to this country in April 1994, and lived with his sister in San Francisco until December 1994.   At that point he went back to Mexico, stayed there a few months, again returned illegally to the United States, and ultimately moved to San Rafael in May 1995.   Appellant admitted he never registered as a sex offender when he lived in San Francisco or San Rafael.

On September 14, 1995, a Mill Valley police officer stopped appellant for a minor traffic violation.   Appellant could not produce a driver's license and gave the officer a false name and birth date.   Ultimately, appellant admitted he did not have a valid driver's license and gave the officer his true name.   The officer booked appellant for being an unlicensed driver and for giving false information to a police officer.   At trial, appellant testified he gave the officer a false name because he did not want to be deported.

On December 15, 1995, a sexual assault investigator with the San Rafael Police Department contacted appellant at the Corinthian Yacht Club in Tiburon, where appellant was working as a waiter.   The officer wanted to determine appellant's correct address and to find out whether he was aware of the section 290 registration requirement.   When the officer asked appellant if he was aware of his obligation to register, appellant said he “wasn't really sure” if he had been informed of the registration requirement.   The officer explained the registration requirement to appellant and appellant made an appointment to register a few days later.   Appellant said he had been living in San Rafael for about three weeks.

Appellant kept his appointment to register.   After he registered he was arrested for parole violations at the request of his parole officer.

The trial court instructed the jury that, in order to find appellant guilty of failing to register under section 290, subdivision (a)(1), they had to find:  “One:  [He] suffered a qualifying sex offense for which he was required by law to register․[¶]  Two:  [He] resides in the state of California.  [¶] Three:  [He] willfully failed to register with the chief of police of the city in which he temporarily resides or was domiciled, within 14 days of coming into that city.  [¶] And, Four:  That when [he] was paroled or released from the place where he was confined because of the commission of a sex offense which required registration, he was informed of his duty to register under Penal Code section 290 by an official in charge of the place of confinement and the person read and signed the form required by the Department of Justice stating that the duty of the person to register under Penal Code section 290 had been explained to him.”

The jury found appellant guilty of failing to register as section 290 requires.   After the trial court denied his motion for new trial and sentenced him to six years in prison, appellant filed this timely appeal.

II

DISCUSSIONA. The Trial Court was not Required to Instruct that Appellant had to have Knowledge of the Registration Requirement.

 The trial court instructed that, to establish a violation of section 290 in this case, the prosecution had to prove, inter alia, that when appellant was released from confinement, a prison official informed him of his duty to register under Penal Code section 290, as that statute specifically requires.⁵  The evidence clearly supports the jury's implied affirmative finding on this issue.

Appellant contends, however, that this “notice” element was not enough.   He argues that, in addition, the court should have instructed that appellant had to have knowledge (not just actual notice) of his duty to register before he could be convicted under section 290.   We disagree.

1) Due Process did not Require that the Jury Find Appellant had Knowledge of the Registration Requirement.

 Appellant first contends due process required that the jury find he had actual (or at least “probable”) knowledge of the registration requirement before he could be convicted of violating section 290.   Appellant's due process argument rests primarily on the United States Supreme Court decision in Lambert v. California (1957) 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228.   In Lambert the high court considered a Los Angeles criminal ordinance that required all convicted felons to register with the Chief of Police within five days of coming into the city.  (Id. at p. 226, 78 S.Ct. 240.)   The ordinance had no notice provision and the defendant in Lambert claimed she was unaware of the registration requirement.   In finding the ordinance violated due process as applied to Lambert, the Supreme Court reasoned:

“We must assume that [Lambert] had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense, which was refused.   The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.

“We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, 4 Bl.Comm. *21, for conduct alone without regard to the intent of the doer is often sufficient.   There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.  [Citation.]   But we deal here with conduct that is wholly passive-mere failure to register.   It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.  [Citations.]   The rule that ‘ignorance of the law will not excuse’ [citation] is deep in our law, as is the principle that of all the powers of local government, the police power is ‘one of the least limitable.’  [Citation.]   On the other hand, due process places some limits on its exercise.   Engrained in our concept of due process is the requirement of notice.   Notice is sometimes essential so that the citizen has the chance to defend charges.   Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed.   Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act․

“Registration laws are common and their range is wide.  [Citations.]   Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities.   But the present ordinance is entirely different.   Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test.   Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking.  ․ [T]his appellant, on first becoming aware of her duty to register, was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent.   She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder.   We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand․   Where a person did not know of the duty to register, and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.”  (Lambert, supra, 355 U.S. at pp. 227-230, 78 S.Ct. 240, italics added.)

Unlike Lambert, in the case before us, the jury necessarily found the State gave appellant actual notice of the registration requirement.   Thus, here there was “proof of the probability” that appellant had knowledge of the registration requirement, as Lambert requires.   In other words, this is a case where appellant failed “to act under circumstances that should [have] alert[ed] [him] to the consequences of his deed.”  (355 U.S. at p. 228, 78 S.Ct. 240.)   Thus, there is no due process violation under Lambert because the jury necessarily found appellant had actual notice of the registration requirement.  (See Griffin v. Wisconsin (1987) 483 U.S. 868, 875, fn. 3, 107 S.Ct. 3164, 97 L.Ed.2d 709;  Texaco Inc. v. Short (1982) 454 U.S. 516, 546-548, 102 S.Ct. 781, 70 L.Ed.2d 738 [describing Lambert as involving “the necessity of notice in the context of a registration statute sufficiently unusual in character, and triggered in circumstances so commonplace, that an average citizen would have no reason to regard the triggering event as calling for a heightened awareness of one's legal obligations”];  United States v. Wilson (7th Cir.1998) 159 F.3d 280 [discussing maxim that “ignorance of the law is no excuse” and summarizing Lambert's holding as “notice required when penalty may be exacted for failing to act”];  Tart v. Commonwealth Of Massachusetts (1st Cir.1991) 949 F.2d 490, 502;  United States v. Vasarajs (9th Cir.1990) 908 F.2d 443, 448 fn.   9 [“In rare situations, when ‘circumstances which might move one to inquire as to the necessity [of conducting oneself in a particular manner so as to avoid criminal liability] are completely lacking,’ [quoting Lambert ], the constructive notice rationale gives way and actual notice is required to sustain a conviction.”];   People v. Jones (1983) 197 Cal.Rptr. 273, 149 Cal.App.3d Supp. 41, 46.)

We do not agree with appellant that Lambert stands for the proposition that a necessary element of a “failure to register” offense is actual or “probable” knowledge of the registration requirement.   Rather, as the trial court properly realized, the due process concerns Lambert recognizes can be addressed by proof the defendant had actual notice of the registration requirement.   As the cases we have cited in the previous paragraph indicate, it is the fact of actual notice-not actual or probable knowledge-which is required to show appellant has been convicted in accordance with due process.   Here, the jury found appellant had actual notice and his conviction therefore comports with due process.

2) The Trial Court Properly Defined “Willfully” In this Context.

 In a related argument, appellant contends the requirement that his failure to register had to be “willful” implies he had to have actual knowledge of the registration requirement in order to violate the statute.   In his words:  “[A]ppellant's contention is that he cannot willfully omit to register if he does not know that he is required to register.”  (Underlining in original.)   We disagree.

As indicated, the trial court instructed the jury that it had to find appellant “willfully failed to register ․ within 14 days of coming into [a] city.” ⁶  The trial court used the standard instruction (based on the definition in section 7 of the Penal Code) to define “willfully” in this context.   That instruction provides:  “The word ‘willfully’ when applied to the intent with which an act is done or omitted means with a purpose or willingness ․ to make the omission in question.   The word ‘willfully’ does not require any intent to violate the law․”  (CALJIC No. 1.20.)

Appellant contends this instruction was incorrect because it did not inform the jury that in order to “willfully” fail to register, appellant had to be actually aware of that obligation in the first instance.   Appellant's understanding of the law-and the meaning of the term “willfully” in this context-is simply incorrect.

Although the statutory context may sometimes require a different meaning for the term “willfully” than that found in CALJIC No. 1.20, nothing in section 290 suggests the Legislature intended to place a restrictive or special meaning on that term as it is used in the registration statute.  (Compare People v. Hagen (1998) 19 Cal.4th 652, 663, 666, 80 Cal.Rptr.2d 24, 967 P.2d 563 [holding that “willfully” signing a false or inaccurate tax return means the taxpayer did so “in voluntary, intentional violation of a known legal duty”].)  Moreover, although the Legislature could have required an actual knowledge element, it was not required to do so because, as we have indicated, it addressed the problems of notice and due process by requiring that the state give actual notice of the registration requirement to all convicted sex offenders who are required to register.⁷  Here, the trial court, through its instructions, specifically made this notice requirement an element of the offense.⁸

Nevertheless, appellant contends the usual definition of “ willfully” cannot apply here because appellant was accused of om itting to act.   again, in his words:  “it is easy to sEE how a person could ‘willfully’ do an act, without knowing that he was violating the law, but appellant was not accused of doing an act:  he was accused of omitting to do an act.   Whether a person can willfully omit to do an act without having knowledge of his duty to do the act poses a conceptual problem.”  (Bold type and underlining in original.)

 However, in our view, this presents a conceptual problem only if one ignores the specific definition of “willfully” contained in the Penal Code and expressed in CALJIC No. 1.20.   Section 7, subdivision 1 states that “[t]he word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to.   It does not require any intent to violate law, or to injure another, or to acquire any advantage.”  (Italics added.)  “[I]t is well settled that the terms ‘willful’ or ‘willfully,’ when applied in a penal statute, require only that the illegal act or omission occur ‘intentionally,’ without regard to motive or ignorance of the act's prohibited character.  [Citations.]”  (Hale v. Morgan (1978) 22 Cal.3d 388, 396, 149 Cal.Rptr. 375, 584 P.2d 512, italics added.)   As can be seen from the text of section 7, subdivision 1, the Legislature intended that its definition apply to omissions to act, as well as to affirmative acts.   Thus, appellant's attempt to distinguish between “omitting to act” and “doing an act” simply does not hold water.

 In our view, it is possible for a person to “purposefully” and “willingly” omit to do something within the meaning of section 7, subdivision 1, even where the person has no actual knowledge of the obligation to act.   Instead, under the section 7, subdivision 1 definition, an omission to act would not be “willful” if circumstances beyond the defendant's control prevented him from acting, such as, for example, where an injury or mental infirmity prevented the defendant from registering in a timely fashion.   This would make the omission to act “unwillful” and would provide a defense whether or not appellant was aware of his obligation to register.  (See People v. Johnson, supra, 67 Cal.App.4th at p. 73, 78 Cal.Rptr.2d 795 [instructions permitted jury to find that failure to register was not willful, but the result of “misinformation and lack of transportation”].)  Of course, that is not the case here.

We find support for our conclusion in People v. Johnson, supra, 67 Cal.App.4th 67, 78 Cal.Rptr.2d 795.   There, the court considered whether failing to register as a sex offender was a specific or general intent crime.   In concluding that failing to register is a general intent crime, the court stated:  “Penal Code section 290 simply prohibits the willful failure to register.   It contains no other intent language and, therefore, is unquestionably a general intent offense.   No specific intent or other mental state is required.”  (Id. at p. 72, 78 Cal.Rptr.2d 795, italics added.)   If section 290 contains “no other intent language” and requires “[n]o specific intent or mental state” then we must look to section 7, subdivision 1, to determine the appropriate definition of “willfully” in this context.   Thus, the court properly instructed with CALJIC No. 1.20, which incorporates the section 7 definition.  (See People v. Johnson, supra, 67 Cal.App.4th at p. 71, 78 Cal.Rptr.2d 795 and People v. McCleod (1997) 55 Cal.App.4th 1205, 1222, 64 Cal.Rptr.2d 545 [approving trial court's use of CALJIC No. 1.20 in section 290 prosecution].) ⁹

Finally, we are not persuaded that Garabedian v. Superior Court (1963) 59 Cal.2d 124, 28 Cal.Rptr. 318, 378 P.2d 590, which appellant cites, requires a different conclusion.   In that case, the Supreme Court [McComb.   J.] held without analysis that an implied element of “hit and run” driving (Veh.Code, § 20001) is that the defendant have knowledge he was involved in an accident causing injury to another, thus triggering his duty to stop and give information.  (59 Cal.2d at pp. 125, 127, 28 Cal.Rptr. 318, 378 P.2d 590;  see also, People v. Kuhn (1956) 139 Cal.App.2d 109, 112, 292 P.2d 964.)   This requirement makes sense, in light of the fact the State cannot give “notice” to a driver that he has just been in an accident.  (See People v. Leutholtz (1929) 102 Cal.App. 493, 498, 283 P. 292 [“That an accident is indispensable to the application of the statutory mandate, is axiomatic, and if a driver be not informed of its occurrence it seems clear that the legislature did not intend that he should be classed among ‘all cases' wherein drivers knowingly injure persons with their automobiles.”].) However, where, as here, the state is required to give actual notice to the defendant of his duty to register, there is no compelling reason to imply a similar “ knowledge” element in a prosecution under section 290.   As the Supreme Court noted in Lambert, supra, “[t]here is wide latitude in lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”  (355 U.S. at p. 228, 78 S.Ct. 240.)

The trial court properly instructed on the meaning of “willfully” in this context.

B. Substantial Evidence Supports the Section 290 Conviction.

 Appellant next contends the evidence is insufficient to support the section 290 conviction because (1) there was no evidence he was provided with a copy of the registration-requirement notice form he signed when he was released from prison;  and (2) the prosecution failed to prove appellant was “required to read” that notice.  (See § 290, subd. (b).)  We conclude the prosecution was not required to prove these facts to convict appellant of failing to register.

We note first that appellant is not arguing that due process required the prosecution to prove he received a copy of the notice and actually read the form.   Instead, he argues that the statute (section 290) specifically makes these facts an element of the offense.

However, as we have previously noted (see footnote 8, ante ), neither section 290 nor case law specifically requires the prosecution to prove the defendant received the notice section 290 mandates in order to obtain a conviction under that section.   Indeed, in at least one recent published case (where the defendant admitted knowledge of the registration requirement) the prosecution was not required to prove the defendant received any notice of the registration requirement, much less the notice specifically prescribed by statute.  (People v. Johnson, supra, 67 Cal.App.4th 67, 70, 78 Cal.Rptr.2d 795.) ¹⁰

Nevertheless, because of the due process concerns in the case before us, the court below required the prosecution to prove that when appellant was released from prison “he was informed of his duty to register under Penal Code section 290 by the official in charge of the place of confinement and the person read and signed a form required by the Department of Justice stating that the duty of the person to register under Penal Code section 290 had been explained to him.”

We agree, for the purpose of argument, that under Lambert v. California, supra, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, due process required the trial court to give this instruction (or a similar instruction) in the circumstances of the case.¹¹  However, appellant now argues this notice requirement is a statutory element of a criminal failure to register under section 290.   Moreover, appellant takes this argument one step further and contends the state must prove it gave the notice precisely as the statute requires.   We disagree.

In arguing the notice provision is a statutory element of a “failure to register” offense under section 290, appellant cites People v. Buford (1974) 42 Cal.App.3d 975, 117 Cal.Rptr. 333.   In that case, Division One of this district reversed a trial court's order revoking probation which was based in part on the defendant's failure to register under section 290.   The appellate court found there was no evidence “from which it could infer that either the court granting probation or the official in charge of the county jail complied with the requirements of section 290.   The only evidence on this point was that [the defendant's] probation officer had been told by the Oakland Police Department that [the defendant] was not registered.  [His probation officer] had never discussed with [him] whether or not he had registered, although the sentencing court clearly directed the probation officer to do so.”  (Id. at p. 987, 117 Cal.Rptr. 333.)   The court reasoned:  “To revoke [the defendant's] probation for his noncompliance with section 290, while excusing the noncompliance of the sentencing court, the jail officials, and/or the probation officer constituted an abuse of discretion.”  (Ibid.)

Thus, People v. Buford, supra, 42 Cal.App.3d 975, 117 Cal.Rptr. 333, does not hold, as appellant suggests, that the notice requirement is a statutory element of a section 290 failure to register offense.   It merely holds that under the circumstances of the case before it, the trial court abused its discretion by revoking probation where there was no proof of notice to the defendant.¹²

Moreover, nothing in the text of section 290 suggests the administrative notice requirement is a statutory element of the offense.   Section 290 sets forth the registration requirement in subdivision (a).¹³  Subdivision (g)(2) of section 290 makes it a felony for any person convicted of a felony registrable offense to “willfully violate[ ] any requirement of this section.”   The administrative notice requirements the state must fulfill are set out in subdivisions (b) and (c) of section 290.¹⁴  Among other things, subdivision (b) requires the official in charge of the defendant's place of confinement to inform the sex offender of his or her duty to register under section 290, to require the sex offender “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 this section has been explained to the person,” and to “give one copy of the form to the person and ․ send one copy to the Department of Justice and one copy to the appropriate law enforcement agency or agencies having jurisdiction over the place the person expects to reside upon discharge, parole, or release.”

Significantly, the Legislature has, on occasion, specifically provided a notice “defense” to section 290 violations where it thought it appropriate.   Thus, in the current version of section 290, at subdivisions (l )(1) and (l ) (2), the statute specifically provides that persons who do not receive notice that the registration period has been shortened from 14 to 5 days can assert the lack of notice as a defense to failing to register within the shortened period.¹⁵  Thus, the Legislature knows how to make the notice requirement an element of the offense (or a least an affirmative defense) if it so chooses.   The fact it failed to do so with the general notice requirement indicates it did not intend to make that requirement a statutory element of the offense in all cases.

Moreover, even if we were to determine that the statute does make some form of actual notice an element of the offense, it would not follow that the prosecution has to prove all of the administrative minutiae that accompany the notice.   Does the prosecution also have to prove the prison official sent one copy of the form to the Department of Justice and one copy to the appropriate law enforcement agency having jurisdiction over the place the person expects to reside, as subdivision (b)(2) requires?   We think even appellant would not stretch the argument that far.   Again, this is not to say the due process concerns the court expressed in Lambert v. California may not on occasion require the prosecutor to prove the defendant received actual notice of the registration requirement.   Here, we merely hold that the statute itself does not impose that requirement and the instruction the trial court gave satisfied the Lambert due process concerns.

C.-F.^**

III

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Subsequent statutory references are to the Penal Code.

2.   Appellant was convicted of two counts of lewd and lascivious conduct with a child (§ 288, subd. (a)) but the specific nature of the charges was kept from the jury.

3.   Section 290 provides in pertinent part:  “(a)(1)(A) Every person [convicted of specified sex crimes], for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located, or the sheriff of the county if he or she is residing, or if he or she has no residence, is located, in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing, or if he or she has no residence, is located upon the campus or in any of its facilities, within five [formerly 14] working days of coming into, or changing his or her residence or location within, any city, county, or city and county, or campus in which he or she temporarily resides, or, if he or she has no residence, is located.”

4.   Appellant testified he was born and grew up in Mexico, attended school there until the ninth grade, and moved to Santa Barbara in 1987 at the age of 21.

5.   Section 290 provides in pertinent part:“(b)(1) 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 because of the commission or attempted commission of one of the offenses specified in subdivision (a) or is released from a state hospital to which he or she was committed as a mentally disordered sex offender ․ shall, prior to discharge, parole, or release, be informed of his or her duty to register under this section 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 this section has been explained to the person.   The official in charge of the place of confinement or hospital shall obtain the address where the person expects to reside upon his or her discharge, parole, or release and shall report the address to the Department of Justice.“(2) The official in charge of the place of confinement or hospital shall give one copy of the form to the person and shall send one copy to the Department of Justice and one copy to the appropriate law enforcement agency or agencies having jurisdiction over the place the person expects to reside upon discharge, parole, or release.   If the conviction that makes the person subject to this section is a felony conviction, the official in charge shall, not later than 45 days prior to the scheduled release of the person, send one copy to the appropriate law enforcement agency or agencies having local jurisdiction where the person expects to reside upon discharge, parole, or release;  one copy to the prosecuting agency that prosecuted the person;  and one copy to the Department of Justice.   The official in charge of the place of confinement shall retain one copy.“(c) Any person who is convicted in this state of the commission or attempted commission of any of the offenses specified in subdivision (a) and who is released on probation, granted conditional release without supervised probation, or discharged upon payment of a fine shall, prior to release or discharge, be informed of the duty to register under this section by the probation department, and a probation officer 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 this section has been explained to him or her.   The probation officer shall obtain the address where the person expects to reside upon release or discharge and shall report within three days the address to the Department of Justice․”

6.   Section 290, subdivision (g)(2) provides that “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.

7.   See footnote 5, ante.

8.   Although nothing in section 290 explicitly makes the notice requirement an element of the offense, and we have found no case holding that it is always an element of the offense, the trial court made the notice requirement an element of the offense in this case through its specific instructions.   Although we conclude this instruction was sufficient to obviate the due process concern appellant has raised on the facts of this case, we do not go so far as to hold the prosecutor must always prove the state complied with section 290's formal notice requirement in order to comport with due process.  (See e.g., People v. Johnson (1998) 67 Cal.App.4th 67, 70-71, 78 Cal.Rptr.2d 795 [where defendant essentially admitted knowledge of registration requirement, trial court did not instruct that prosecution had to prove it gave formal notice as required by section 290].)  Rather, we merely hold it was appropriate for the trial court to give the instruction on the facts of this case and that, by doing so, the trial court avoided any due process problem under Lambert v. California, supra, 355 U.S. 225, 78 S.Ct. 240.  (See Discussion, post, at pp. 300-303.)

9.   In re Jerry R. (1994) 29 Cal.App.4th 1432, 35 Cal.Rptr.2d 155, which appellant cites, is of no help to him.   That case merely held it is a defense to a charge of “willfully” discharging a firearm that the defendant believed the firearm was unloaded.   The court reasoned that “when a statute simply prohibits the commission of one act, i.e., the discharge of a firearm, the intentional act requirement may [not] be satisfied by the willful commission of a different act, i.e., the pulling of the trigger of a gun believed to be unloaded.”  (Id. p. 1441, 35 Cal.Rptr.2d 155.)   Here, appellant made the precise omission section 290, subdivision (g)(2) prohibits:  he failed to register as the statute requires.   Thus, In re Jerry R. is inapposite.Similarly, his reliance on Ratzlaf v. United Statess (1994) 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 is also misplaced.   That case held that in order for a defendant to “willfully” circumvent federal legislation requiring financial institutions to report cash transactions that exceed $10,000, the government must prove he structured his transactions in a manner that he knew was unlawful.  (Id. at pp. 136-137 [114 S.Ct. 655].)  The Supreme Court reached this conclusion because the courts had construed the “willfulness” requirement as applied in other parts of the same law to include “ ‘a specific intent to commit the crime.’ ”  (Id. at p. 141 [114 S.Ct. 655].)  Thus, the court, relying on the rule that a term appearing in several places in a statutory text should be read the same way each time, concluded the term “willfully violated” should be read the same way in the criminal statute before it.  (Id. at pp. 143 [114 S.Ct. 655].)  Appellant has not-and cannot-make a similar argument based on the text of section 290.Moreover, it appears federal criminal law lacks an analog to section 7, subdivision 1, and that “[a]s a general matter, when used in the [federal] criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’   In other words, in order to establish a ‘willful’ violation of a [federal criminal] statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’ ”  (Bryan v. United States (1998) 524 U.S. 184, [118 S.Ct. 1939, 141 L.Ed.2d 197] quoting Ratzlaf, supra, 510 U.S. at p. 137 [114 S.Ct. 655].)  This definition is, of course, directly contrary to the definition of “willfully” found in section 7.

10.   In People v. Johnson, supra, 67 Cal.App.4th 67 at p. 71, 78 Cal.Rptr.2d 795, the trial court instructed the jury as to the elements of the offense as follows:  “ ‘Any person required to register pursuant to Penal Code section 290 shall comply with the following requirements for the rest of his life[:]  [¶]  (1) Shall register with the chief of police or sheriff[ ] of the county, if he is domiciled in an unincorporated area.  [¶] (2) Shall register within 14 days of coming into any city, or county, or city and county in which he temporarily resides and is domiciled for that length of time, and [¶] (3) Shall be required annually to update his registration, within five working days of his birthday, verifying his name and address.  [¶] Any person required to register under this section who willfully violates this section is guilty of the crime of failure to register.’ ”   The court did not give any instructions on the notice requirement and defined “willfully” using CALJIC 1.20.

11.   As indicated, we need not and do not define the precise situations in which due process requires that the jury be instructed it must find that the defendant received actual notice of the registration requirement.   Here, we merely hold that the instruction the trial court did give clearly satisfied any due process concerns raised by Lambert v. California, supra, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228.

12.   Indeed, the Buford court made it clear the trial court revoked the defendant's probation because he violated the terms of his probation, not because he committed a new offense.  (42 Cal.App.3d at p. 985, 117 Cal.Rptr. 333.)   Thus, the Buford court had no cause to examine the elements of a section 290 failure to register offense.

13.   That subdivision currently provides in full:  “(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located, or the sheriff of the county if he or she is residing, or if he or she has no residence, is located, in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing, or if he or she has no residence, is located upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence or location within, any city, county, or city and county, or campus in which he or she temporarily resides, or, if he or she has no residence, is located.  [¶] (B) If the person who is registering has no residence address, he or she shall update his or her registration no less than once every 90 days in addition to the requirement in subparagraph (A), on a form as may be required by the Department of Justice, with the entity or entities described in subparagraph (A) in whose jurisdiction he or she is located at the time he or she is updating the registration.  [¶] (C) Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subparagraph (A), including, verifying his or her name and address, or temporary location, on a form as may be required by the Department of Justice.  [¶] (D) In addition, every person who is a sexually violent predator, as defined in Section 6600 of the Welfare and Institutions Code, shall, after his or her release from custody, verify his or her address no less than once every 90 days in a manner established by the Department of Justice.  [¶] (E) No entity shall require a person to pay a fee to register or update his or her registration pursuant to this section.   The registering agency shall submit registrations, including annual updates or changes of address, directly into the Department of Justice Violent Crime Information Network (VCIN).”

14.   See footnote 5, ante.

15.   The pertinent subdivisions provide:  “(l )(1) Every person who, prior to January 1, 1997, is required to register under this section, shall be notified whenever he or she next reregisters of the reduction of the registration period from 14 to 5 working days.   This notice shall be provided in writing by the registering agency or agencies.   Failure to receive this notification shall be a defense against the penalties prescribed by subdivision (g) if the person did register within 14 days.  [¶] (2) Every person who, as a sexually violent predator, as defined in Section 6600 of the Welfare and Institutions Code, is required to verify his or her registration every 90 days, shall be notified wherever he or she next registers of his or her increased registration obligations.   This notice shall be provided in writing by the registering agency or agencies.   Failure to receive this notice shall be a defense against the penalties prescribed by paragraph (5) of subdivision (g).”  (Italics added.)

FOOTNOTE.   See footnote *, ante.

PARRILLI, J.

McGUINESS, P.J., and CORRIGAN, J., concur.