Filed 7/20/26 P. v. Clark CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C103170
Plaintiff and Respondent,
(Super. Ct. No. 24FE017011)
v.
JOHN MARK CLARK, JR.,
Defendant and Appellant.
Defendant John Mark Clark, Jr., appeals from his conviction on two counts of
failing to register as a sex offender as required by the Sex Offender Registration Act (the
Act) (Pen. Code, § 290 et seq.).1 He argues (1) there was insufficient evidence he resided
in California at the time of the alleged offenses and the trial court thus erred in denying
his motion for acquittal pursuant to section 1118.1; (2) his conviction on both counts
violates the corpus delicti rule; (3) there is insufficient evidence to sustain his conviction
on one of the counts; and (4) the prosecutor committed misconduct during closing
argument. We disagree with all of his arguments and thus affirm.
BACKGROUND
Clark was charged with one count of failing to register within five working days of
his birthday, as required by section 290.012; and one count of failing to register upon
1 Further undesignated statutory references are to the Penal Code.
1
release from incarceration, as required by section 290.015.2
The parties stipulated Clark was convicted of a sex offense that required him to
register pursuant to the Act.
The People’s evidence showed the following. On September 25, 2024, Officer
Tera Carson of the Sacramento Police Department was patrolling an area behind a
grocery store located in the 5300 block of Stockton Boulevard in Sacramento when she
approached a group of approximately six people, one of whom was Clark. Officer
Carson asked the group, “Do you guys all live close by or how did you get back here?”
and one person responded that he was “[h]omeless.” Officer Carson then asked Clark,
“How about you,” and he responded that he lived “nearby” or “close by.” Officer Carson
searched Clark and found two baggies in his pants pocket containing what she believed to
be marijuana and methamphetamine. Clark was arrested and booked in county jail.
Footage from Officer Carson’s body camera was introduced into evidence. That
footage shows her approaching a group of people sitting in a dirt area next to a parking
lot. There are several bikes, one or two baby strollers, what appears to be a push cart,
what appears to be an overturned desk chair, and several boxes or plastic crates near the
group. Clark is sitting in a wheelchair. Officer Carson asks Clark if he is able to stand,
and he replies, “No.” She helps him stand and then searches his pockets. When one of
the members of the group tells Officer Carson he is homeless, she asks, “How about you
Mr. Clark?” and he responds, “I live close by.” She then asks if he lives in the unit across
the street, and he shakes his head. She then asks if he lives in an “actual house,” and he
says no.
Sacramento Police Department Detective William Goggin was assigned to the
Sacramento County Sexual Assault Felony Enforcement (SAFE) Task Force, and his
2 He was also charged with one count of possession of methamphetamine, but the
jury found him not guilty on that count, and we thus do not discuss it further.
2
duties include monitoring and supervising convicted sex offenders and investigating
violations of section 290. He explained that a person who is required to register must do
so every year within five working days of his or her birthday (and we note Clark’s
birthday is July 19). In addition, a person who is incarcerated for a period exceeding 30
days must reregister within five working days of their release. Finally, a person who is
transient is required to reregister every 30 days,3 and a person who changes his or her
residence must notify law enforcement within five working days. Registration must be
done in person, and the registration office for Sacramento County is located in
Sacramento.
Detective Goggin was notified of Clark’s arrest, and on October 10, 2024, he
obtained and reviewed Clark’s registration history, and copies of that history were
introduced into evidence. That history dates back to Clark’s initial registration in July
2003 and it lists every “registration event” that occurred thereafter. Detective Goggin
explained a new registration event would be created each time Clark went to the office to
register. Clark was frequently transient, and because he had to register every 30 days
when he was transient, his history contained numerous registration events. All told, he
had over 110 registration events between his initial registration in July 2003 and July 20,
2023. He always registered in Sacramento, and he always gave either an actual address
in Sacramento or Sacramento County4 or noted he was “Transient.”
3 “For purposes of the [A]ct, ‘transient’ means a person who has no residence.
‘Residence’ means one or more addresses at which a person regularly resides, regardless
of the number of days or nights spent there, such as a shelter or structure that can be
located by a street address, including, but not limited to, houses, apartment buildings,
motels, hotels, homeless shelters, and recreational and other vehicles.” (§ 290.011, subd.
(g).)
4 In 2003 and 2004, Clark registered at an address in Rio Linda, which is in
Sacramento County. All other addresses were in Sacramento.
3
Clark last registered on July 20, 2023, which was the day after his birthday. He
gave his address as 4990 Stockton Boulevard in Sacramento. He had given that same
address on May 12, 2023, when he registered a change of address within the jurisdiction.
Detective Goggin went to that address and learned it was a “follow-on care facility” and
not a permanent residence, and the maximum amount of time a person could stay there
was 90 days.
Clark’s birthday is July 19, and he was thus required to complete his annual
registration within five days of July 19, 2024. As of October 10, 2024, when Detective
Goggin obtained Clark’s registration history, he had not done so. Detective Goggin also
reviewed Sacramento County’s “custody record” or “known person file,” which showed
Clark was in Sacramento County jail from May 14 to July 9, 2024. Detective Goggin
testified Clark was required to reregister within five working days of his release, but his
registration history showed he did not do so.
At the close of the People’s case, Clark made a motion pursuant to section 1118.1,
arguing the People failed to present sufficient evidence he resided in Sacramento County
at the time of the violations. In particular, he argued his prior registration history in
Sacramento, his presence in Sacramento on September 15, 2024, and his statement to
Officer Carson that he lived nearby were not sufficient to show he “continued to remain a
resident of this county for the violation period.” The court denied the motion, stating,
“I’ll note … that for anyone familiar with the County, the location where the defendant
was encountered is, I believe, nowhere near the County line. I think that him being found
in the County — in the City … on the date in question … in addition to the other
evidence along with his own statement that he lives close by is sufficient evidence to
present to the jury.”
The jury was instructed that, as to both counts, the People had to prove Clark
“resided in Sacramento, California,” and both sides addressed this element in their
4
closing arguments (we will describe the closing arguments in more detail below, when
we discuss Clark’s prosecutorial misconduct argument).
The jury found Clark guilty of both counts, and he filed a timely notice of appeal.
DISCUSSION
I
The Act’s Registration Requirements
The Act requires certain convicted sex offenders to register with appropriate law
enforcement agencies “while residing in California.” (§ 290, subd. (a); see also People v.
Mosley (2015) 60 Cal.4th 1044, 1048 [“California law has long required persons
convicted of certain specified sex crimes” “to register as sex offenders as long as they
live or work in California”].) The purpose of the Act “ ‘is to assure that persons
convicted of the crimes enumerated therein shall be readily available for police
surveillance at all times because the Legislature deemed them likely to commit similar
offenses in the future. [Citation.]’ [Citations.] Plainly, the Legislature perceives that sex
offenders pose a ‘continuing threat to society’ [citation] and require constant vigilance.”
(Wright v. Superior Court (1997) 15 Cal.4th 521, 527.)
It is undisputed that Clark was convicted of a sex offense that required him to
register pursuant to the Act. He was charged with violating section 290.012, which
required him to register every year “within five working days of his … birthday.”
(§ 290.012, subd. (a).) He was also charged with violating section 290.015, which
required him to register “within five working days of his … release after serving a jail
sentence of 30 days or more.” (People v. Toloy (2015) 239 Cal.App.4th 1116, 1118-1119
(Toloy); see also § 290.015, subd. (a).) Finally, although he was not charged with
violating this provision, we note section 290.013 provides, “A person who was last
registered at a residence address pursuant to the Act who changes his or her residence
address, whether within the jurisdiction in which he or she is currently registered or to a
new jurisdiction inside or outside the state, shall, in person, within five working days of
5
the move, inform the law enforcement agency or agencies with which he or she last
registered of the move, the new address or transient location, if known, and any plans he
or she has to return to California.” Because Clark was last registered at a residence
address in Sacramento (i.e., the 4990 Stockton Boulevard address), he was required to
inform Sacramento authorities if he moved out of either Sacramento or California, but he
did not do so.
When a defendant is charged with failing to register, the People have the burden of
proving the defendant was residing in California at the time of the violation. (People v.
Wallace (2009) 176 Cal.App.4th 1088, 1102-1107.) Most of Clark’s arguments concern
this requirement.
II
The Section 1118.1 Motion
Section 1118.1 provides, “In a case tried before a jury, the court on motion of the
defendant … at the close of the evidence on either side and before the case is submitted
to the jury for decision, shall order the entry of a judgment of acquittal of one or more of
the offenses charged in the accusatory pleading if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on appeal.” Clark argues
there was insufficient evidence he was residing in California at the time of the two
charged offenses to sustain a conviction, and the trial court thus erred in denying his
section 1118.1 motion. We disagree.
“An appellate court reviews the denial of a section 1118.1 motion under the
standard employed in reviewing the sufficiency of the evidence to support a conviction.
[Citation.] ‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence —
evidence that is reasonable, credible and of solid value — such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We
6
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence … . [Citation.] “[I]f
the circumstances reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled with a
contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s
credibility.’ [Citation.] Review of the denial of a section 1118.1 motion made at the
close of a prosecutor’s case-in-chief focuses on the state of the evidence as it stood at that
point.”5 (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
Clark’s birthday is July 19. Thus, assuming he resided in California at the time, he
was required to complete his annual registration between July 12 and July 26, 2024. And
because he was released from custody in the Sacramento County jail on July 9, 2024, he
was also required to register within five working days of that date, or by July 16, 2024.
We find there was sufficient evidence Clark was residing in California during the last few
weeks of July 2024 to sustain his conviction on both counts.
The evidence showed that, between July 2003 and July 2023, Clark registered over
110 times in Sacramento, signifying he resided in Sacramento and/or Sacramento County
during that entire 20-year period. When he last registered on July 20, 2023, he gave an
address on Stockton Boulevard in Sacramento. He was in the Sacramento County jail
from May 14 to July 9, 2024, and he was released in Sacramento. Two and a half months
after being released in Sacramento, he was found by police on Stockton Boulevard in
Sacramento and he told officers he lived close by. Finally, if Clark had moved out of
either Sacramento or California, he was required by section 290.013 to inform
Sacramento authorities of that fact, but he did not do so, which supports an inference he
5 Clark did not submit any evidence in this case, and the evidence at the close of the
prosecutor’s case-in-chief was thus also the entirety of the evidence.
7
never left (and as we discuss below, he acknowledges such an inference was
permissible). Viewed in its totality, this evidence is sufficient to support a finding Clark
resided in California during the relevant time period.
Clark disagrees, and contends there was an “evidentiary gap” about where he lived
between the time he was released from Sacramento County jail on July 9 and the time he
encountered police in Sacramento on September 25. Although there may be no direct
evidence he remained in Sacramento during this time period, we find the evidence
viewed as a whole supports a reasonable inference that he did and is thus sufficient to fill
this gap. (See People v. Grant (2020) 57 Cal.App.5th 323, 330 [“ ‘Substantial evidence
includes circumstantial evidence and any reasonable inferences drawn from that
evidence’ ”].)
Clark argues this case is similar to People v. Wallace, supra, 176 Cal.App.4th
1088, and his conviction should be reversed for the same reason it was reversed in that
case. Wallace is distinguishable. The defendant in Wallace challenged his convictions
for (1) failing to register within five working days of changing his residence within any
city or county and (2) failing to register within five working days of his December 7
birthday. (Id. at pp. 1091-1092, 1094, 1100, 1104.) The evidence showed he registered
in Pittsburg, California, eight times between July 2003 and January 2006, and he did not
register anywhere in California thereafter. (Id. at pp. 1093-1094.) On six occasions
between November 2006 and May 2007, a real estate broker inspected the last address at
which the defendant had registered and found it vacant. (Id. at p. 1094.) In April 2007,
the Pittsburg Police Department checked that address and found it vacant, and a warrant
was issued for the defendant’s arrest. (Ibid.) We are not told when or where he was
arrested, and it appears there was no evidence regarding his whereabouts between the
time of his last registration in January 2006, and his arrest sometime after April 2007.
The defendant argued the evidence was insufficient to sustain the convictions and
the appellate court agreed. It held the prosecutor had to prove the defendant had moved
8
to a location within California in order to establish he violated the requirement to register
within five days of changing his or her residence, because “if he left California after
vacating his last registered address in Contra Costa County, his failure to register a new
address or location anywhere in California within five working days would not amount to
a violation of this provision.” (People v. Wallace, supra, 176 Cal.App.4th at p. 1103.) It
found there was no evidence regarding the defendant’s whereabout after he left his last
registered address, and his registration history was insufficient to support an inference he
remained in California. (Ibid.) For similar reasons, the court found there was insufficient
evidence he continued to live in California in December 2006, when he would have been
required to complete his annual registration. (Id. at p. 1105.)
This case is distinguishable because, unlike in Wallace, Clark’s registration history
was not the only evidence presented on the issue of whether he remained in California in
July 2024. There was also evidence Clark was in jail in Sacramento from May 14 to
July 9; he was found in Sacramento two and a half months after his release, and he told
police he lived nearby; and he never informed Sacramento authorities he had moved out
of the jurisdiction. Again, viewed as a whole, the evidence is sufficient to support an
inference he remained in Sacramento at the time of the violations.
Clark also argues this case is similar to People v. Balkin (2006) 145 Cal.App.4th
487, and his conviction should be reversed for the same reason it was reversed in that
case. Balkin is also distinguishable. The defendant in Balkin was convicted of failing to
register within five days of “coming into” Los Angeles.6 The evidence showed he was in
6 Section 290, subdivision (b), requires a person to register “within five working
days of coming into … any city, county, or city and county.” At the time Balkin was
decided, this provision was found in section 290, subdivision (a)(1)(A). (People v.
Balkin, supra, 145 Cal.App.4th at pp. 490-491.)
9
prison in Chino, California7 in 2001 and 2003, and he was “paroled on April 3, 2005,”
but there was “no evidence to establish the prison from which [he] was paroled.”
(Balkin, at p. 490; see id. at pp. 489-490.) The sex offender registration database “had no
record of defendant registering … at any time.” (Id. at p. 490.) The defendant was
arrested on April 21, 2005, in downtown Los Angles, and he gave a Los Angeles address
“as the location where he received mail.” (Ibid.) He argued there was no evidence he
entered Los Angeles within five days before he was arrested, and the court agreed. It
noted that although the defendant had a Los Angeles mailing address, “there was no
evidence to establish when defendant secured that address or moved into the city or
county — it could have been one day prior to his arrest or more than five days.” (Id. at
pp. 492-493.)
This case is distinguishable because Clark was not charged with failing to register
within five days of entering Sacramento. And for the reasons stated above, we find the
evidence is sufficient to support a finding he resided in California at the time of the
offenses, and the trial court thus did not err in denying his motion for acquittal pursuant
to section 1118.1.
III
The Corpus Delicti Rule
Clark argues reversal is also required because, other than his statement to police
that he lived nearby, there was insufficient evidence he resided in California at the time
of the offenses to satisfy the corpus delicti rule. We disagree.
Our Supreme Court has described the corpus delicti rule as follows: “In every
criminal trial, the prosecution must prove the corpus delicti, or the body of the crime
itself — i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its
cause. In California, it has traditionally been held, the prosecution cannot satisfy this
7 Chino is in San Bernardino County.
10
burden by relying exclusively upon the extrajudicial statements, confessions, or
admissions of the defendant.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.)
“This rule is intended to ensure that one will not be falsely convicted, by his or her
untested words alone, of a crime that never happened.” (Id. at p. 1169.) The rule
“prohibits conviction where the only evidence that the crime was committed is the
defendant’s own statements outside of court” and it “allows the defendant, on appeal,
directly to attack the sufficiency of the prosecution’s independent showing.”8 (Alvarez,
at p. 1180.) “The amount of independent proof of a crime required [to satisfy the corpus
delicti rule] is quite small; we have described this quantum of evidence as ‘slight’
[citation] or ‘minimal’ [citation].” (People v. Jones (1998) 17 Cal.4th 279, 301.) “ ‘The
independent proof may be circumstantial and need not be beyond a reasonable doubt, but
is sufficient if it permits an inference of criminal conduct, even if a noncriminal
explanation is also plausible.’ ” (People v. Gonzalez (2021) 12 Cal.5th 367, 382.) “The
inference need not be ‘the only, or even the most compelling, one … [but need only be] a
reasonable one.’ ” (Jones, at pp. 301-302.) Once sufficient independent evidence of the
corpus delicti is adducted, “the defendant’s statements may be considered to strengthen
the case on all issues.” (Alvarez, at p. 1181.)
Clark argues that, because the prosecution had to prove he resided in California at
the time of the offense, the corpus delicti rule required some evidence of his residency
independent of his statement to police that he lived close by. We find there was such
independent evidence. As the trial court noted, “the defendant was found in the location
[i.e., Sacramento] at the moment in question,” and “presence [in Sacramento] is some
8 The corpus delicti rule also “requires an instruction to the jury that no person may
be convicted absent evidence of the crime independent of his or her out-of-court
statements.” (People v. Alvarez, supra, 27 Cal.4th at p. 1180.) Here, the jury was given
CALCRIM No. 359, which explains the corpus delicti rule, and Clark does not challenge
the instruction or contend it was inadequate.
11
evidence.” To this we would add the other evidence described above, including Clark’s
20-year registration history in Sacramento; his presence in the Sacramento County jail
between May and July 2024; his release in Sacramento; and his failure to notify
Sacramento authorities he was leaving Sacramento. This other evidence is sufficient to
satisfy the corpus delicti rule.
IV
Evidence of Knowledge as to Count Two
“ ‘[A] violation of section 290 requires actual knowledge of the duty to register.’ ”
(Toloy, supra, 239 Cal.App.4th at p. 1123.) Clark argues his conviction on count two
must be reversed because there was insufficient evidence he had actual knowledge he
was required to reregister after being released from jail.9 We disagree.
The evidence showed that in July 2023, when he completed his annual
registration, Clark signed and initialed a document stating he had been notified of and
understood the following: “I must re-register in person, if I have previously registered,
within five (5) working days, after release from incarceration … that lasted 30 or more
days.” The evidence also showed Clark had signed and/or initialed documents containing
similar statements on at least five other occasions: (1) in December 2004, (2) April 2016,
(3) August 2016, (4) December 2017, and (5) March 2018. This is sufficient to support
the jury’s finding that Clark knew he had to reregister when he was released from jail in
July 2024.
Clark disagrees. He quotes the following statement from Toloy, supra,
239 Cal.App.4th at page 1123: “ ‘[1] A jury may infer knowledge from notice, but [2]
notice alone does not necessarily satisfy the willfulness requirement.’ ” (Bracketed
numbers added.) He focuses entirely on the second part of the statement and completely
9 Clark acknowledges, “there was sufficient evidence that he knew he had to
register within five working days of his birthday … (as pertinent to count one).”
12
ignores the first part. Here, the jury was instructed on count two that the People had to
prove Clark “actually knew” he had a duty to register “upon [his] release from
incarceration.”10 “We assume the jury followed this instruction” (People v. Trinh (2014)
59 Cal.4th 216, 252), and the evidence of notice described above is sufficient to sustain
the jury’s finding that he had such knowledge.
Moreover, the Toloy court’s statement that “notice alone does not necessarily
satisfy the willfulness requirement” is actually a quote from People v. Garcia (2001)
25 Cal.4th 744. The defendant in Garcia challenged his conviction for failing to register,
arguing he was unaware of the registration requirement. The evidence showed that,
before he was released from prison, he signed a form titled “ ‘Notice of Registration
Requirement’ ” that stated he had been notified of his duty to register. (Id. at pp. 748-
749.) At trial, he testified, “he remembered meeting with a prison official and signing a
number of documents before he was released” but “he did not read the notice of
registration requirement before he signed it” and “no one read this document to him or
explained his duty to register.” (Id. at p. 749.) The jury was instructed it had to find the
defendant “ ‘willfully failed’ ” to register, and “ ‘[t]he word “willfully” … means with a
purpose or willingness … to make the omission.’ ” (Id. at p. 751.) The jury was also
instructed, “ ‘When the evidence shows that the person voluntarily did that which the law
declares to be a crime, it is no defense that he did not know that the act was unlawful or
that he believed it to be lawful.’ ” (Ibid.) The defendant argued, “the instructions failed
to make it clear to the jury that a ‘willful’ failure to register requires a finding that he
actually knew about his duty to register. In defendant’s view, the ‘ignorance of the law is
no excuse’ instruction [citation] was misleading because it suggested the jury could
convict defendant even if he had no actual knowledge of the registration requirement.”
10 Clark does not challenge the instruction.
13
(Ibid.) The Attorney General, in contrast, argued, “actual knowledge is not an element of
the offense” and “ ‘it is the fact of actual notice — not actual or probable knowledge —
which is required,’ ” and “[t]he Court of Appeal agreed with the Attorney General.”
(Ibid.) As described by our Supreme Court, “the Court of Appeal believed that notice,
not knowledge, is the critical element under the registration statute.” (Ibid., italics
added.)
Our Supreme Court agreed with the defendant and held, “In a case like this,
involving a failure to act, we believe section 290 requires the defendant to actually know
of the duty to act. … [A] sex offender is guilty of a felony only if he ‘willfully violates’
the registration … provisions of section 290. [Citations.] The word ‘willfully’ implies a
‘purpose or willingness’ to make the omission. [Citation.] Logically one cannot
purposefully fail to perform an act without knowing what act is required to be
performed. … Accordingly, a violation of section 290 requires actual knowledge of the
duty to register. A jury may infer knowledge from notice, but notice alone does not
necessarily satisfy the willfulness requirement.” (People v. Garcia, supra, 25 Cal.4th at
p. 752, italics added.) Thus, when it stated, “notice alone does not necessarily satisfy the
willfulness requirement,” the court was explaining that — contrary to the Court of
Appeal’s holding — notice alone was not sufficient. To the extent Clark contends that
notice alone can never satisfy the knowledge requirement, we disagree and point him
back to the first part of the Supreme Court’s statement — i.e., that “[a] jury may infer
knowledge from notice.” (Ibid.)
Clark also notes section 290.017 provides that a person must be notified of their
duty to register each time they are released from jail, but there was no evidence he was
provided with such notice when he was released from jail in July 2024. This may be true,
but it is not grounds for reversal.
Section 290.017, subdivision (a), provides, “Any person who is released,
discharged, or paroled from a jail … , who is required to register pursuant to the Act,
14
shall, prior to discharge, parole, or release, be informed of his or her duty to register
under the Act by the official in charge … , 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 the Act has been explained to the person.” This provision
is not limited to a section 290 registrant’s initial release from confinement and applies to
“each release.” (Toloy, supra, 239 Cal.App.4th at p. 1122.) Case law teaches, however,
“that the failure to comply with section 290.017 does not mean that defendant cannot be
convicted of failure to reregister” upon release from incarceration. (Ibid., italics added.)
As long as there is “substantial evidence that defendant had actual knowledge of his duty
to reregister after his … release from jail, the failure to notify him of his duty did not
preclude a conviction for failing to reregister.” (Id. at p. 1124.) And for all the reasons
we have discussed, we find there was such evidence in this case.
V
Prosecutorial Misconduct
Clark’s final argument is that the prosecutor committed misconduct during his
rebuttal closing argument by misstating the law. He acknowledges his counsel did not
object at the time, and he also acknowledges the rule that “[a] defendant’s ‘failure to
object and request an admonition waives a misconduct claim on appeal unless an
objection would have been futile or an admonition ineffective.’ ” (People v. Jackson
(2016) 1 Cal.5th 269, 367.) He contends an objection “[a]rguably” would have been
futile because the trial court had rejected a similar argument when it considered his
section 1118.1 motion. Assuming we are not convinced by his futility argument, he also
cites the rule that “[a]n appellate court is generally not prohibited from reaching a
question that has not been preserved for review by a party” and “[w]hether or not it
should do so is entrusted to its discretion.” (People v. Williams (1998) 17 Cal.4th 148,
15
161, fn. 6.) We elect to reach the merits of Clark’s prosecutorial misconduct argument
and find no misconduct.11
A. Relevant portions of closing arguments
During closing argument, the prosecutor acknowledged, “I have to prove that Mr.
Clark actually resided in Sacramento County.” He then went through the evidence that
proved residency, including the fact that all Clark’s prior registrations were in
Sacramento; the most recent address he gave in July 2023 was in Sacramento; when he
was contacted by Officer Carson in September 2024 he was in Sacramento, less than half
a mile away from the address he had given in July 2023, and he told Officer Carson he
lived close by; and he was in custody in Sacramento from May to July 9, 2024.
The prosecutor then stated: “I want to talk about one thing. There is actually a
requirement. If Mr. Clark were to move out of Sacramento County, I want to direct your
attention to box 10 on … People’s Exhibit 2, box number 10, and this is the last thing that
Detective Goggin told us about this issue.[12] Mr. Clark signed and acknowledged that if
he changed his address to a new address, either within or outside the jurisdiction, he has a
11 Clark also contends his counsel’s failure to object constituted ineffective
assistance, but we need not address this argument, and even if we did address it, our
finding that there was no misconduct means his “claim of ineffective assistance of
counsel must fail” as well. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 120; see
also People v. Sanchez (2019) 38 Cal.App.5th 907, 915 [“defendant’s claim of ineffective
assistance turns on whether the prosecutor did, in fact, engage in misconduct to which an
objection would have been meritorious”].)
12 People’s exhibit 2 was the annual registration form Clark filled out in July 2023,
and box 10 — which he initialed — states, “If I change my registered address to a new
address, either within the same jurisdiction or anywhere inside or outside of the state, I
must inform the last registering agency or agencies in person within five (5) working
days before or after I leave.” And the last thing Detective Goggin testified was, “If
[Clark] were to change his residence, he has the same requirement … to notify us, and
that’s if you move within the jurisdiction, anywhere inside or outside of the State, … you
are required to notify law enforcement within the five working days.”
16
duty to notify within five days. [¶] So we didn’t talk too much about this. But all of
this, the fact that Mr. Clark never updated his address telling he moved out of Sacramento
County, all of that suggests that he did live and was a resident in Sacramento County.
And we could look at his previous change of address registrations.[13] This is a process
that Mr. Clark is familiar with. We know that because he’s done it before.” Clark has no
complaints about this argument. In fact, he acknowledges it was “permissible” for the
prosecutor to argue “the jury could infer from [Clark’s] failure to file a change of address
notification that he had, in fact, continued to reside in Sacramento,” and again, “the
prosecutor was free to argue that the jury could infer that [he] remained in Sacramento
based on his failure to file a change of address form.”
In her closing argument, defense counsel argued, “I don’t have to prove anything
to you. I don’t have to prove to you that Mr. Clark moved. I don’t have to prove to you
that there was any other place that he should have been registering. [¶] In fact, he could
have been somewhere else. He could have violated that registration. It’s not on me. It’s
their burden to prove to you that he continued to be a resident of this county, that he
continued to live here.” (Italics added.)
Seemingly in response to this portion of defense counsel’s argument, the
prosecutor argued the following in his rebuttal: “And what it seems like the defense is
trying to do is say that he’s not guilty … because he broke the forms, box number 10,
which required him to notify us anyway had he left the county. They can’t have their
cake and eat it too, folks. There is no way that Mr. Clark doesn’t live in the County of
Sacramento and still was compliant with his 290 registration. [¶] When we look at the
13 Clark’s registration history shows at least 10 registrations events were to notify
authorities he had changed his address in Sacramento County.
17
combination of box 7, box 8, and box 10,[14] you’ll see that it’s very clear. And it does
lead, all of the evidence in this that I have presented, to the conclusion that Mr. Clark is
guilty.” (Italics added.) Clark argues the italicized portion of the argument “went too
far” and misstated the law because it effectively told the jury “that even if they believed
[he] had moved out of Sacramento, the verdict should still be guilty because by not filing
the required change of address form, [he] would still be out of ‘compliance’ with section
290[.013].”
B. Analysis
It is considered error or “misconduct” for the prosecutor “to misstate the law to the
jury, and bad faith is not required. [Citation.] But a prosecutor is allowed to vigorously
argue the case and is afforded ‘significant leeway’ in discussing the facts and the law in
closing argument.” (People v. Azcona (2020) 58 Cal.App.5th 504, 516.) Even if the
prosecutor makes one statement that, “when viewed in isolation, did misstate the law,”
there is no error if, “in the context of the entire argument and jury instructions, it was not
reasonably likely the jury understood or applied the statement in an improper or
erroneous manner.” (People v. Meneses (2019) 41 Cal.App.5th 63, 66.) And again:
“When attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n
the context of the whole argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that
the jury drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667.)
“If the challenged comments, viewed in context, ‘would have been taken by a juror to
14 Box 7 outlines the requirement to register after being released from incarceration,
box 8 outlines the annual registration requirement, and as just noted, box 10 outlines the
change of address registration requirement.
18
state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.’ ”
(People v. Cortez (2016) 63 Cal.4th 101, 130.) Moreover, and somewhat relatedly,
“Prosecutorial misconduct is reviewed for prejudice. [Citation.] [¶] ‘[A]rguments of
counsel “generally carry less weight with a jury than do instructions from the court. The
former are usually billed in advance to the jury as matters of argument, not evidence
[citation], and are likely viewed as the statements of advocates; the latter, we have often
recognized, are viewed as definitive and binding statements of the law.” [Citation.]’
[Citation.] ‘When argument runs counter to instructions given a jury, we will ordinarily
conclude that the jury followed the latter and disregarded the former, for “[w]e presume
that jurors treat the court’s instructions as a statement of the law by a judge, and the
prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” ’ ”
(People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268.)
Here, given the prosecutor’s argument as a whole and the instructions that were
given to the jury, we find it was not reasonably likely the jury understood or applied the
challenged statement in an improper manner.
As noted above, section 290.013 provides, “A person who was last registered at a
residence address … who changes his or her residence address, whether within the
jurisdiction in which he or she is currently registered or to a new jurisdiction inside or
outside the state, shall, in person, within five working days of the move, inform the law
enforcement agency or agencies with which he or she last registered of the move.”
(§ 290.013, subd. (a).) As also noted above, the prosecutor told the jury in his initial
closing argument that Clark knew he had to notify authorities in Sacramento County if he
changed his address and the fact that he did not do so supported an inference he
continued to live in Sacramento County. Clark acknowledges this argument was
“permissible,” and we agree.
Clark notes he was not charged with violating section 290.013, and he argues “it
was not permissible to tell the jury that [he] could be found guilty of the charged offenses
19
[i.e., failing to register within five working days of his date of birth as required by
§ 290.012, and failing to register within five working days of being released from
incarceration as required by § 290.015] based on a potential violation of section
290.013.” We agree in the abstract, but we do not view the prosecutor’s rebuttal
argument as telling the jury it could find Clark guilty of the charged offenses based on a
violation of section 290.013. Instead, we view the prosecutor’s rebuttal as a permissible
response to defense counsel’s argument that “I don’t have to prove to you that Mr. Clark
moved. … In fact, he could have been somewhere else [i.e., he could moved out of
Sacramento or out of California]. He could have violated that registration [i.e., he could
have violated the requirement that he notify law enforcement if he moved out of
Sacramento or out of California]. It’s not on me. It’s their burden to prove to you that he
continued to be a resident of this county.” (Italics added.) Particularly when viewed in
the context of the prosecutor’s entire argument, the one challenged statement in rebuttal
simply reiterated his earlier argument (which Clark agrees was permissible) that the jury
could infer Clark remained in Sacramento County based on his failure to notify
authorities he had left. “In addressing a claim of prosecutorial misconduct … , we view
the prosecutor’s comments in relation to the remarks of defense counsel, and inquire
whether the former constitutes a fair response to the latter.” (People v. Frye (1998)
18 Cal.4th 894, 978.) We find the prosecutor’s response to defense counsel’s argument
was a fair — if perhaps somewhat inartful — response to the latter.
When we consider the prosecutor’s entire argument in conjunction with the jury
instructions, our finding rejecting misconduct becomes even stronger. As to count one,
the jury was instructed the People had to prove beyond a reasonable doubt that Clark
resided in Sacramento; that he knew he had a duty to register within five days of his
birthday; and that he failed to register within five days of his birthday. As to count two,
the jury was instructed the People had to prove beyond a reasonable doubt that Clark
resided in Sacramento; that he knew he had a duty to register upon release from
20
incarceration; and that he failed to register upon his release from incarceration. We
presume the jury followed the court’s instructions, and that it did not understand or apply
the prosecutor’s rebuttal in an improper manner. (See People v. Katzenberger, supra,
178 Cal.App.4th at p. 1268 [“ ‘When argument runs counter to instructions given a jury,
we will ordinarily conclude that the jury followed the latter and disregarded the former,
for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to
persuade” ’ ”].) In particular, we find it was not reasonably likely a jury that was so
instructed would have understood that even if it believed Clark was not a resident of
Sacramento at the time of the alleged offenses, it should still find him guilty “because he
did not file a change of address form and was thus ‘out of compliance with ‘his 290[.013]
registration” requirement.
DISPOSITION
The judgment is affirmed.
/s/
EARL, P. J.
We concur:
/s/
BOULWARE EURIE, J.
/s/
MESIWALA, J.
21