P. v. Bahr

Filed 8/17/06 P. v. Bahr CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

This appeal is yet another manifestation of the problems inherent in the registration requirements of former Penal Code section 290 as they applied to transient sex offenders,[1] problems previously recognized by our Division Three colleagues in People v. North (2003) 112 Cal.App.4th 621, 634 (North), where the court held portions of section 290 to be unconstitutionally vague. At the North court's urging, the Legislature revised section 290, adding extensive new provisions governing the registration requirements for transient sex offenders that became effective January 1, 2005. (See Section 290, subd. (a)(1)(C), as amended by Stats. 2004, ch. 429; 3 Witkin & Epstein, Cal. Criminal Law (2005 supp.) Punishment, § 185A, p. 70.) Because defendant Steven Bahr was arrested prior to the effective date of those new provisions, we must consider the statute as it existed at the time of North, when the statute as it applied to transients was ambiguous at best.

Here, defendant was found guilty of failing to register as a convicted sex offender within five working days of changing his residence or address or becoming transient in violation of section 290, subdivision (a)(1)(A). He asserts four errors on appeal: (1) the information charged defendant only with failing to register within five days of changing his residence in San Francisco, and he received insufficient notice of the alternative theory on which he was ultimately convicted, namely failure to register within five working days of changing his residence or address, or becoming transient; (2) the jury instructions were erroneous because they failed to instruct that defendant's duty to register in a given jurisdiction only arose after he had been in that jurisdiction for five consecutive working days, a requirement established by North, supra, 112 Cal.App.4th 621; (3) the trial court neglected to instruct the jury that defendant's failure to register had to be willful; and (4) defendant's trial counsel rendered ineffective assistance by failing to challenge San Francisco as the proper venue for trial of the alternative theory.

We agree with defendant's first two contentions, and conclude that the errors were not harmless. We therefore reverse.

I. Factual and Procedural Background

A. Defendant's Registration History Pursuant To Section 290

Defendant stipulated below that he had a prior conviction for a felony sex offense and was therefore required to register as a sex offender pursuant to section 290. Prior to the registration troubles that resulted in the conviction here, defendant had registered for years in the city of Santa Rosa in compliance with the section 290 requirements. As explained at trial by Leslie Bayan, the Santa Rosa Police Department detective in charge of the city's sex offender registration program, the city uses Department of Justice form SS-8102, â€