THE PEOPLE v. ERNIE McCARTY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Ernie McCarty appeals from the judgment entered following his convictions by jury on two counts of failing to register as a sex offender (Pen.Code, § 290, subd. (b);  counts 2 & 4) with court findings he suffered a prior felony conviction (Pen.Code, § 667, subd. (d)) and two prior felony convictions for which he served separate prison terms (Pen.Code, § 667.5, subd. (b)).  The court sentenced appellant to prison for nine years four months.   We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)

6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on September 24, 2008 (count 2), in Wilmington, and on September 23, 2009 (count 4), in San Pedro, appellant registered with police as a sex offender and registered his residence address as the address of a boat slip in a marina.   There is no dispute that said address was berth 204, boat slip E–5, in the Newmark Yacht Centre (Newmark) in Wilmington.

Annie Nicotera, who had been Newmark's manager for probably about 15 years, testified as follows.   Nicotera rented boat slips at Newmark.   The marina had about 250 slips, along with an office, restrooms, and showers.   Between 25 and 50 people lived on their boats in 2008.   In 2009, people lived in only 13 boats.   People who lived on boats, i.e., live-aboards, paid an extra fee (i.e., a live-aboard fee) beyond the slip rental charge.   Boat owners could stay on their boats up to 72 hours without paying the live-aboard fee, but Nicotera suggested the three 24–hour periods could not be consecutive.

Nicotera rented a slip at Newmark and lived on her boat in 2008 and most of 2009.   She worked on weekdays between 9:00 a.m. and 5:00 p.m., and spent most of her time after work on her boat.   In 2008 and 2009, she tended to spend her weekends on her boat.   In September 2009, Nicotera spent all but perhaps four nights on her boat.

As manager, Nicotera monitored the live-aboards, including those who did so without paying the live-aboard fee.   Live-aboards who did not pay the live-aboard fee were “sneak-aboards.”   Nicotera monitored the cars in the parking lot, and if the cars were there all the time, this indicated the cars' owners were sneak-aboards.   She would also see sneak-aboards exiting the showers and buying items at the store.   Newmark had nine surveillance cameras continuously operating, and Nicotera used them to watch the marina.   Nicotera also spoke with live-aboards about sneak-aboards.   If a sneak-aboard were present, the live-aboards were the first to run and tell Nicotera, because they were upset that they were paying the live-aboard fee and the sneak-aboards were not.

Nicotera knew appellant.   He rented a slip at Newmark but was not paying the live-aboard fee.   Appellant acquired his boat in April 2008, and initially spent so much time there at the slip that Nicotera suspected he might be a sneak-aboard.   On one occasion, Nicotera confronted appellant, told him he could not live aboard, and appellant denied he had been doing so.   Nicotera never had to have that conversation with appellant again.

Nicotera saw appellant frequently in May 2008, but probably saw him about 10 times from June 2008 through December 2009, inclusive.   She had no information from her investigations of sneak-aboards that appellant was living aboard his boat in September 2008.   Nicotera reviewed surveillance tapes about 20 times a month and reviewed the tapes in the summer months of both 2008 and 2009.   She saw no evidence on the tapes that appellant had lived aboard his boat from June 2008 through December 2009.   None of the live-aboards complained to Nicotera in 2008 or 2009 that appellant had been a sneak-aboard.   There were no security guards at the location.   A person could get up very early and, undetected, leave the person's boat.

When appellant registered on September 24, 2008, and September 23, 2009, he did so with Los Angeles Police Officer Mark Fassam, who testified as follows.   On September 23, 2009, appellant came to register his address.   Appellant “disclos[ed] his address as a boat.”   Fassam conversed with appellant “regarding the [previously mentioned] address that [appellant] registered [.]”  Fassam asked how much appellant's slip fees were.   Appellant indicated he did not remember the exact amount but said he paid in the range of $200 to $300.   Fassam previously had rented his own slip in Redondo Beach, and that experience caused him to question the information appellant had given “about [appellant's] residence and how much he was paying to rent a slip.”   According to Fassam, appellant's claimed amount was extremely low for live-aboard rent and was more likely merely the slip rent.

Later in 2009, Fassam and his partner went to the marina in Wilmington that appellant had disclosed as his address.   They found the slip he was renting and it was the slip registered on the sex offender registration form.   The boat appeared to be locked and secured from the outside.   Fassam called out and knocked on the boat's window but received no reply.

On October 27, 2009, appellant came to the police station.   After appellant waived his Miranda rights, Fassam said to appellant, “We know you're not living at the boat.   Where do you live?”   Fassam testified appellant was evasive and that appellant said he “lives with friends and family.”   Fassam asked appellant to provide the addresses of the friends and family, but appellant did not do so.   Appellant did not say, “ ‘Sometimes I stay on my boat.’  “ Fassam indicated in his report that appellant said he sometimes stayed with friends and sometimes stayed with family.

Fassam testified he asked appellant, “ ‘Why are you registering your boat when you don't reside there?’  “ Appellant replied that because he was a “290 sex registrant,” there were certain areas he could not live in, and he could not register his families' addresses.   Fassam explained to appellant that as long as appellant was not a parolee, he could live anywhere.   Fassam testified appellant threw up his hands, “kind of [as] an exclamation.”   Appellant slapped his forehead with his right hand.   Appellant presented no defense evidence.

ISSUES

Appellant claims (1) the trial court erred by failing to clarify the meaning of the term “reside” in CALCRIM former No. 1170 as modified, (2) multiple convictions on counts 2 and 4 were improper, (3) multiple punishment on counts 2 and 4 violated Penal Code section 654, (4) multiple punishment on counts 2 and 4 violated double jeopardy protections, (5) the trial court erroneously refused to dismiss appellant's prior felony conviction, and (6) the trial court violated the prohibition against the dual use of facts when the court relied on the same facts to impose consecutive sentences on counts 2 and 4, and to impose one of the Penal Code section 667.5, subdivision (b) enhancements.

DISCUSSION

1. The Trial Court Did Not Err by Failing to Define the Term “Reside.”

The trial court, using without objection a modified CALCRIM former No. 1170, instructed the jury on the elements of the present offenses.¹  Appellant's counsel argued to the jury he was “staying on a boat as his residence” and “[h]e felt that he had to live there and register at that address, and he did.”   Appellant's counsel also argued appellant “reside[d] on that boat [ ]” and “That's the fourth element they have to show;  that if he did not reside on ․ that boat, then he would be guilty.”   The jury retired to deliberate at 3:15 p.m. on January 28, 2010.   The jury posed no questions to the court during deliberations.   At 3:20 p.m., the jury notified the court that they had reached a verdict.

Appellant claims in essence the trial court erred by failing to define the term “reside” (or “resided”) in the above mentioned instruction.  (See fn. 1, ante.)   The proposed instruction which appellant argues the court should have given is “ ‘Reside’ means more than passing through or presence for a limited visit.   To reside is to temporarily or permanently dwell in a place, which one keeps and to which one intends to return, as opposed to a place where one rests or shelters during a trip or a transient visit.”   Appellant's claim is unavailing.

First, generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.   (Cf. People v. Palmer (2005) 133 Cal.App.4th 1141, 1156 (Palmer ).)   There is no dispute CALCRIM former No. 1170 correctly stated the law and was responsive to the evidence, except to the extent of the challenged term.   Appellant waived his instructional issue by failing to request appropriate clarifying or amplifying language.  (Cf. Palmer, at p. 1156.)

Even if the issue was not waived, the trial court had no duty to define the term “reside.”   In People v. McCleod (1997) 55 Cal.App.4th 1205 (McCleod ), the defendant claimed the trial court had a duty to instruct sua sponte on the meaning of the term “residence” in Penal Code section 290, former subdivision (f).²  McCleod observed the term was “so easily understood by a person of common intelligence as ‘connot[ing] more than passing through or presence for a limited visit[ ]’ that further definition is not required.”   (Id. at pp. 1218–1219.)   McCleod stated “the registration requirement is used as an aid to law enforcement in locating sex offenders and a fair reading of the words in accordance with this use contemplates notification by the offender when he is in a place where he is living or temporarily staying for more than the limited time defined by the statute.”  (Id. at p. 1219, italics added.)

McCleod also observed, “Neither the courts nor the Legislature has seen the need to further define the common term of residence for [Penal Code former] section 290.   Nor do we․  We thus conclude the trial court did not have a sua sponte duty to define the term ‘residence’ for purposes of defining the crime described in [Penal Code former] section 290, subdivision (f).”  (McCleod, supra, 55 Cal.App.4th at p. 1219.)   We find McCleod instructive and reject appellant's claim.  (Cf. People v. Gonzales (2010) 183 Cal.App.4th 24, 36–37;  McCleod, supra, 55 Cal.App.4th at pp. 1215–1219.)

Finally, even if the trial court violated a sua sponte duty to define the term “reside,” it does not follow we must reverse the judgment.   For purposes of appellant's instructional claim, there is no dispute (1) the People proved the four elements of the offenses (see fn. 1, ante ), (2) appellant registered the previously mentioned boat slip address as the address in which he resided, and (3) he was properly convicted on counts 2 and 4, except to the extent appellant claims the trial court failed to define the term “reside.”   Appellant argues the court's failure to define the term “reside” was prejudicial because appellant was “permitted” to stay on his boat up to three nights a week and he merely had told police he sometimes stayed with friends and relatives.

However, the issue is not whether appellant was permitted to stay on the boat, but whether he in fact resided there.   We note the following.   Appellant denied to Nicotera that appellant had been living aboard his boat.   Fassam told appellant that they knew he was not living on the boat and Fassam asked appellant where he lived.   Appellant was evasive and said he was living with friends and family.   Appellant did not then deny that he was not living on the boat.   When Fassam asked why appellant had listed the boat as his address when he did not live there, appellant replied that as a sex registrant, there were certain areas he could not live in, and he could not register at the addresses of his family members.   Again, appellant did not then deny that he did not live on the boat.   Appellant's failures to deny Fassam's statements that appellant was not living on the boat were adoptive admissions of the truth of Fassam's statements.  (See People v. Riel (2000) 22 Cal.4th 1153, 1189.)

In sum, even if the trial court had given to the jury appellant's proposed instruction defining the term “reside,” the testimony of Nicotera and Fassam provided overwhelming evidence that, even according to that definition, appellant did not reside at the boat slip address which he had registered as the address in which he resided.   The jury, during their deliberations, asked no questions about the meaning of the term “reside” in the instruction at issue, and the jury reached their verdicts in five minutes.   The failure by the trial court to define the term “reside” was harmless under any conceivable standard.  (Cf. People v. Watson (1956) 46 Cal.2d 818, 836 (Watson );  Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)

2. Appellant Committed Two Separate Offenses.

Appellant claims he committed only a single violation of Penal Code section 290, subdivision (b).  We disagree.   In People v. Meeks (2004) 123 Cal.App.4th 695 (Meeks ), the court stated, “By requiring defendants to register annually ․, it was no doubt the Legislature's intent to treat each violation of the registration requirements as a separate, continuing offense in order to encourage compliance with the law and to ensure to the extent possible that a sex offender's whereabouts remain known.”  (Id. at p. 703, italics added.)   Although Meeks involved a conviction for a failure to register upon a change of address and a conviction for a failure to register annually on the defendant's birthday (ibid.), and the present case involves two convictions for failing to register annually on a defendant's birthday, we view this as a distinction without a difference.   Multiple convictions on counts 2 and 4 were proper.  (Cf. id. at pp. 702–703.)

3. Multiple Punishment on Counts 2 and 4 Did Not Violate Penal Code Section 654.

The trial court sentenced appellant to prison for nine years four months, consisting of six years (the three-year upper term, doubled pursuant to the “Three Strikes” law) as to count 2, with a consecutive subordinate term as to count 4 of one year four months (the eight-month middle term, doubled pursuant to the “Three Strikes” law), plus two one-year Penal Code section 667.5, subdivision (b) enhancements.   Appellant claims multiple punishment on counts 2 and 4 violated Penal Code section 654.   We disagree.

When presented with this issue, Meeks stated, “Once a triggering event occurs, the offense of failing to register is continuing in nature.   Failure to register within five days of defendant's birthday occurred [in that case] after December 8, 1998, and again after December 8, 1999, and every year thereafter.   Although the periods for each of these offenses overlap somewhat and the objective of each is the same, it cannot reasonably be argued that defendant can be punished only once for each successive failure to register․  [¶] ‘[T]he purpose of [Penal Code] section 654 “is to insure that a defendant's punishment will be commensurate with his culpability.”  ‘ [Citation.]  Under the circumstances of this case, failure to punish defendant for each failure to register would violate this purpose.   A defendant who ․ repeatedly allows a birthday to pass without registering, is surely more culpable than one who fails to register following only one triggering event.  [Penal Code] [s]ection 654 does not prohibit the multiple punishments imposed in this case.”   (Meeks, supra, 123 Cal.App.4th at pp. 705–706.)

As mentioned, although Meeks involved a conviction for a failure to register upon a change of address and a conviction for a failure to register annually on the defendant's birthday (Meeks, supra, 123 Cal.App.4th at p. 703), and the present case involves two convictions for failing to register annually on a defendant's birthday, we view this as a distinction without a difference.

We note the probation report reflects appellant was born on September 25, 1966.   For purposes of guilt-establishment, the crime at issue in count 2 was complete when he failed to register within five working days of September 25, 2008 (Pen.Code, § 290.012, subd. (a)) (having provided, on September 24, 2008, erroneous information as to the address in which he resided).   During the period following five working days after September 25, 2008, but prior to September 23, 2009, the only criminal objective appellant harbored pertained to count 2. Multiple punishment on counts 2 and 4 did not violate Penal Code section 654.  (Cf. Meeks, supra, 123 Cal.App.4th at pp. 703–706.)

4. Multiple Punishment on Counts 2 and 4 Did Not Violate Double Jeopardy Protections.

Appellant claims multiple punishment on counts 2 and 4 violated double jeopardy protections.   We disagree.  “The Fifth Amendment to the federal Constitution provides:  ‘No person shall ․ be subject for the same offense to be twice put in jeopardy of life or limb․’  The double jeopardy clause protects criminal defendants in three ways:  ‘ “It protects against a second prosecution for the same offense after acquittal.   It protects against a second prosecution for the same offense after conviction.   And it protects against multiple punishments for the same offense.”  ‘ [Citations.]”  (People v. Massie (1998) 19 Cal.4th 550, 563, italics added.)  “Protection against double jeopardy is also embodied in article I, section 15 of the California Constitution, which declares that ‘[p]ersons may not twice be put in jeopardy for the same offense.’  “ (People v. Fields (1996) 13 Cal.4th 289, 297–298, italics added.)

We believe Meeks illuminates this issue as well.   After Meeks concluded that multiple punishment for the offenses at issue in that case did not violate Penal Code section 654, Meeks observed, “Having so concluded, we need not consider defendant's argument that remand for the trial court to determine the objective [for purposes of Penal Code section 654 analysis] underlying each offense violates double jeopardy principles.   This is not a case of a single act or course of conduct that results in multiple offenses.   This matter involves separate triggering events giving rise to separate offenses.”  (Meeks, supra, 123 Cal.App.4th at p. 706, italics added.)   We believe Meeks's analysis applies here and that the offenses at issue in counts 2 and 4 in the present case are separate offenses, i.e., they are not the same offense for purposes of double jeopardy analysis;  therefore, no double jeopardy violation occurred.

5. The Trial Court Properly Refused to Dismiss Appellant's Prior Felony Conviction.

a. Pertinent Facts.

The probation report reflects appellant's criminal history as follows.   In 1989, appellant was convicted of reckless driving and, in November 1989, the court placed him on summary probation for one year.   In October 1990, appellant was arrested for providing false identification to a peace officer, and appellant was convicted of that charge.   In 1994, appellant was convicted of vandalism and, in February 1994, the court placed him on probation for three years.   In April 1994, appellant was arrested for tampering with a vehicle.   He was convicted of that charge and, in November 1994, the court placed him on summary probation for three years.   In August 1996, appellant was arrested for failing to provide for a minor.   Appellant was convicted of that charge and, in October 1998, the court placed him on summary probation for three years.   In 2001, probation was revoked and the court sentenced appellant to a term in local custody.

In April 1997, appellant was arrested in case No. NA032306, for lewd or lascivious acts with a child under 14 years old (Pen.Code, § 288, subd. (a)).  He was convicted of that charge and, in May 1997, the court placed him on formal probation for five years.   In October 1999, probation was revoked and reinstated, and the court sentenced appellant to a term in local custody.   The probation report reflects that, effective January 7, 1998, appellant was a “registered controlled substance offender.”

In May 2000, appellant was arrested in case No. NA045148 for failing to register as a sex offender.   On December 3, 2001, he was convicted of that charge and the court sentenced him to prison for two years eight months.   In 2003, appellant was arrested in case No. NA059662 for failing to register as a sex offender.   He was convicted of that charge and, in 2005, the court sentenced him to prison for 32 months.   The probation report reflects appellant had a total of four felony convictions and four misdemeanor convictions.

On March 1, 2010, appellant had a court trial on the prior conviction allegations.   Evidence admitted at that trial reflects appellant was released on parole in June 2008, i.e., about three months before he committed the offense at issue in count 2 in the present case.   After the admission of evidence at said court trial, appellant requested that the court strike the 1997 strike on the grounds it was remote and appellant had no subsequent history of violence.   The prosecutor opposed the request, arguing appellant's subsequent failures to register as a sex offender directly related to the strike.

The court stated, “Exactly, exactly.   That's the problem.   The 288(a), lewd or lascivious acts with a child under the [age] of 14, require that he [register] as a sex offender for the rest of his life, and the specific reason for that, and the reason why our California Supreme Court has been so strict about interpreting the 290 statute, is so that the police can locate sex offenders when there's a problem and can easily find them in case they need to talk to those people.  [¶] And the defendant is one who specifically refuses to do that, since this is his third violation of a 290 case.  [¶] So ․ [the prosecutor] said it right on the head․  That's exactly why I will not strike the strike.”

Later, following sentencing argument, the court commented that appellant's criminal record began in 1989 and continued unabated.   After reviewing appellant's criminal history, the court stated that “the fact that he is without remorse and continues to refuse to register and comply with the registration conditions is especially grievous, and I actually will not do anything in consideration of striking the strike or preventing him from being sentenced according to the full powers of the Legislature.   I will not.”   The court found true the strike and Penal Code section 667.5, subdivision (b) allegations, and sentenced appellant as previously indicated.

b. Analysis.

Appellant claims the trial court erroneously refused to dismiss his 1997 strike.   We disagree.   The court presided at appellant's jury trial and at his court trial on the prior conviction allegations.   The court also heard argument of counsel concerning appellant's request that the court strike the strike.

In light of the nature and circumstances of appellant's current offenses and the strike, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the “Three Strikes” law as to the strike, and may not be treated as though he previously had not suffered it.  (Cf. People v. Williams (1998) 17 Cal.4th 148, 161–164 (Williams ).)   The mere age of the strike did not require the trial court to strike it, particularly where, as here, appellant did not live a legally blameless life after his commission of the offense underlying the strike, but before his commission of the present offenses.  (Cf. People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)   We hold the trial court's order refusing to strike appellant's strike was sound, and not an abuse of discretion.  (Cf. Williams, supra, at pp. 158–164;  People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054–1055;  People v. Askey (1996) 49 Cal.App.4th 381, 389.)

6. The Trial Court Did Not Violate the Prohibition Against the Dual Use of Facts.

We have set forth in part 5, ante, appellant's criminal record, including facts pertaining to appellant's placement, and performance, on probation in his various prior cases.   We have set forth in part 3, ante, the court's sentencing scheme, including consecutive sentences on counts 2 and 4, and the imposition of the two Penal Code section 667.5, subdivision (b) enhancements, one of which enhancements was based on appellant's 2001 conviction in case No. NA045148 for failing to register as a sex offender.   Concerning said consecutive sentences, the court stated, “the reason I am sentencing him consecutively on count 4 is the fact that he has had violations and has not done well on prior probationary grants.”

Appellant claims the trial court violated the prohibition against the dual use of facts (Cal. Rules of Court, rule 4.425(b)(2)) by relying on the same facts to impose consecutive sentences on count 2 and 4, and to impose the Penal Code section 667.5, subdivision (b) enhancement based on the above 2001 conviction.   He essentially argues dual use of facts occurred because appellant's arrest for the offense underlying the 2001 conviction constituted a violation of probation, and that probation violation was the sole probation violation upon which the trial court in the present case relied to impose consecutive sentences on counts 2 and 4;  therefore, the trial court erred by relying on the 2001 conviction to impose one of the Penal Code section 667.5, subdivision (b) enhancements.

However, the trial court never expressly stated that appellant's arrest for the offense underlying the 2001 conviction was the sole probation violation upon which the trial court relied to impose consecutive sentences.   The trial court relied on the facts appellant had “violations” and had not done well on prior probationary “grants.”   Leaving aside appellant's arrest for the offense underlying the 2001 conviction, we note appellant's criminal record as set forth in part 5, ante, reflects appellant suffered arrests in October 1990, April 1994, August 1996, and April 1997, and, each time, appellant was on probation in another case.   Moreover, in October 1999, the court revoked and reinstated probation granted in connection with appellant's 1997 conviction for a violation of Penal Code section 288, subdivision (a).   In September 2001, probation granted in connection with appellant's conviction for providing false identification to a peace officer was revoked.

The above facts provided bases, independent of appellant's arrest for the offense underlying the 2001 conviction, upon which the trial court reasonably could have imposed consecutive sentences on counts 2 and 4 because of appellant's “violations” and the fact he had not done well on prior probationary “grants.”   No impermissible dual use of facts occurred.  (Cf. People v. Garcia (1995) 32 Cal.App.4th 1756, 1775.)

Moreover, even if dual use of facts occurred, we conclude (consistent with Meeks's analysis) that the trial court reasonably could have relied upon the following factors to impose consecutive sentences on counts 2 and 4, i.e., the crimes and their objectives were predominantly independent of each other (Cal. Rules of Court, rule 4.425(a)(1)), and the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior (rule 4.425(a)(3)).   The court indicated it would do nothing to prevent appellant “from being sentenced according to the full powers of the Legislature.”   Any sentencing error was harmless.  (Cf. Watson, supra, 46 Cal.2d at p. 836;  People v. Edwards (1993) 13 Cal.App.4th 75, 80.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. In 2008 and 2009, Penal Code section 290, subdivision (b) provided in essence that sex offenders residing in California “shall be required to register ․ in accordance with the [Sex Offender Registration Act].” Penal Code section 290.012, subdivision (a) was part of the Act. (Pen.Code, § 290, subd. (a).)  Penal Code section 290.012, subdivision (a), stated, in relevant part, “Beginning on his or her first birthday following registration ․, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration․  At the annual update, the person shall provide current information as required on the Department of Justice annual update form, ․” There is no dispute appellant completed such a form on September 24, 2008, and September 23, 2009, and that the form required appellant to register the address in which he resided.The modified CALCRIM former No. 1170 read:  “The defendant is charged in Counts 2 and 4 with failing to register as a sex offender in violation of Penal Code section 290(b).  [¶] To prove that the defendant is guilty of this crime, the People must prove that:  [¶] 1. The defendant was previously convicted of a felony sex offense for which the defendant is required to register;  [¶] 2. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resided;  [¶] 3. The defendant actually knew he had a duty to register the address in which he resided;  [¶] AND [¶] 4. When the defendant registered his annual update in Wilmington, CA on 9/24/08 and San Pedro, California on 9/23/09 with the Los Angeles Police Department Harbor Division within five working days of his birthday, the defendant willfully registered an address in which he did not reside.”.  FN1. In 2008 and 2009, Penal Code section 290, subdivision (b) provided in essence that sex offenders residing in California “shall be required to register ․ in accordance with the [Sex Offender Registration Act].” Penal Code section 290.012, subdivision (a) was part of the Act. (Pen.Code, § 290, subd. (a).)  Penal Code section 290.012, subdivision (a), stated, in relevant part, “Beginning on his or her first birthday following registration ․, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration․  At the annual update, the person shall provide current information as required on the Department of Justice annual update form, ․” There is no dispute appellant completed such a form on September 24, 2008, and September 23, 2009, and that the form required appellant to register the address in which he resided.The modified CALCRIM former No. 1170 read:  “The defendant is charged in Counts 2 and 4 with failing to register as a sex offender in violation of Penal Code section 290(b).  [¶] To prove that the defendant is guilty of this crime, the People must prove that:  [¶] 1. The defendant was previously convicted of a felony sex offense for which the defendant is required to register;  [¶] 2. The defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 wherever he resided;  [¶] 3. The defendant actually knew he had a duty to register the address in which he resided;  [¶] AND [¶] 4. When the defendant registered his annual update in Wilmington, CA on 9/24/08 and San Pedro, California on 9/23/09 with the Los Angeles Police Department Harbor Division within five working days of his birthday, the defendant willfully registered an address in which he did not reside.”

FN2. At the time of the defendant's offense in McCleod, Penal Code section 290, former subdivision (f), provided, in relevant part, “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.”.  FN2. At the time of the defendant's offense in McCleod, Penal Code section 290, former subdivision (f), provided, in relevant part, “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.”

KLEIN, P.J. CROSKEY, J.