P.
v. Cuevas
Filed
5/5/14 P. v. Cuevas
CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
GUSTAVO CUEVAS,
Defendant and Appellant.
B243117
(Los
Angeles County
Super. Ct.
No. NA091065)
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero,
Judge. Affirmed.
Roberta Simon, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General,
for Plaintiff and Respondent.
_______________________
Gustavo Cuevas appeals his convictions and sentence on
two counts of failing to register as a sex offender. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
January 2010 Release from
Incarceration
On April 5, 2002, Cuevas was convicted of a
felony that required him to register as a sex offender pursuant to
290.023. He was released from
incarceration on January 28, 2010.
On February 3, 2010, Cuevas reported to Los
Angeles Police Department officer Dawna Killingsworth for sex offender
registration. Together they reviewed a
form entitled, “Notice of Sex Offender Registration Requirement.†She allowed Cuevas time to read the form and
to ask questions, and she reviewed the requirements of the form. Cuevas signed the document and initialed each
line on a list of requirements. One of
the listed requirements was the requirement to re-register within five days
after release from an incarceration lasting more than 30 days. Cuevas initialed this requirement, and agreed
to follow the terms.
Next, Killingsworth and
Cuevas reviewed a sex registration update form.
Cuevas provided information about where he would be staying, and that
information was included on the form.
Killingsworth gave Cuevas time to read the form and to ask
questions. He appeared to understand
what he was reading, agreed to follow the terms, and signed and initialed the
form. Killingsworth gave Cuevas copies
of the registration documents.
October 2010 Release from
Incarceration
Cuevas was subsequently incarcerated from September 17, 2010, through October
30, 2010. He was released on October 30, 2010.
On November 2, 2010, Cuevas reported to his
parole officer, Monica Abundis, in Huntington Park. She reviewed a form with him that contained
the conditions of his parole, allowing him time to read it. Abundis asked him to initial certain lines of
the document and to sign it if he understood and agreed with its terms. Cuevas signed the document.
The parole conditions form specifically stated that
registration was required under section 290.
Abundis went over that registration requirement with Cuevas, and she
advised him that he needed to register as a sex offender as soon as
possible. Cuevas said he was homeless
and a transient. Abundis advised him to
register as a transient as soon as possible, and that he had only five business
days to register. Cuevas indicated that
he understood the requirement and that he would fulfill it. Among other conditions to which Cuevas agreed
were requirements that he keep his updated sex offender registration
verification with him at all times and present it during contact with law
enforcement, and that he remain in California unless given permission by
his parole officer to leave.
Abundis placed a global positioning system (GPS)
device on Cuevas’s ankle for parole supervision and instructed Cuevas not to
take off the device. The device
monitored his location and also sent out an alert to the parole agent if it was
removed or tampered with. Cuevas was
wearing the GPS device when he left Abundis’s office at approximately 12:05
p.m.
Later that day, the GPS device transmitted an alert
indicating that Cuevas had removed the device.
At approximately 1:25 p.m., a woman identifying
herself as Cuevas’s girlfriend returned the cut-off GPS device to Abundis.
Cuevas failed to re-register
as a sex offender within five business days of his release from
incarceration. His location was unknown
to parole and law enforcement until he was taken into custody in Los Angeles County on December 29, 2010.
June 2011 Release from
Incarceration
Cuevas was incarcerated from January
21, 2011, through June 7, 2011, and was released on June 7, 2011. On June 8, 2011, Cuevas reported to parole agent Melissa Cogill. She went over the conditions of parole with
him again, and he initialed and signed a form reflecting these conditions. Cogill went over the requirement that he
register as a sex offender with Cuevas, as well as the residency restrictions
that apply to him as a sex offender.
Cuevas read and signed the specific sex offender addendum form that
specified registration requirements and other conditions for sex
offenders. Cuevas also read and signed a
form entitled, “Notice of Sex Offender Registration Requirement.†He confirmed that he understood what was
required of him and affirmed that he would follow the rules.
Cogill asked Cuevas where he was going to live to
ensure that his address was compliant with residency restrictions. Cuevas said he wanted to live with his
girlfriend; he did not provide her address, but he implied that the residence
was close to a park or a school. Cogill
told him that if he could not provide her with a residence, he had to register
as a transient. Cogill explained that if
he were to register as a transient, he would register with the police
department that covered the area, or the sheriff’s department if he was within
the county. Cuevas said he would be
living in Los Angeles County. Cuevas agreed not to leave California without Cogill’s
permission, and he never asked for permission to leave the state.
Cogill fitted Cuevas with a GPS device, and it was
intact when Cuevas left the office.
Cogill received a tampering alert from the device on June 12, 2011. Cuevas was a
parolee at large until July 18, 2011, when he turned himself
in.
Cuevas was charged with two counts of failing to
register as a sex offender upon release from incarceration (§ 290.015,
subd. (a)), one based on the time period from November
8, 2010, and December 9, 2010, and the other based upon
the time period from June 14, 2011, and July 18, 2011. It was alleged
as to both counts that Cuevas had suffered prior convictions within the meaning
of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Cuevas was convicted by the jury on both counts. The court found true the prior conviction
allegations, denied Cuevas’s motion to
strike his two prior strikes, and imposed a sentence of 53 years to life.
DISCUSSION
I. Sufficiency
of the Evidence to Support Conviction
Cuevas argues on appeal that the evidence was
insufficient to support his convictions for failing to register as a sex
offender because the prosecution failed to prove beyond a reasonable doubt that
Cuevas was living in California on the dates relevant to
each charge. “In reviewing a claim for
sufficiency of the evidence, we must determine whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime or special
circumstance beyond a reasonable doubt. We
review the entire record in the light most favorable to the judgment below to
determine whether it discloses sufficient evidence—that is, evidence that is
reasonable, credible, and of solid value—supporting the decision, and not
whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate
the credibility of witnesses. [Citation.]
We presume in support of the judgment
the existence of every fact the jury reasonably could deduce from the evidence.
[Citation.] If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a
contrary finding.†(People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
Section 290.015, subdivision (a) provides that a
person subject to the sex offender registration requirement “shall register, or
reregister if he or she has previously registered, upon release from
incarceration, placement, commitment, or release upon probation.†The individual “must register with the chief
of police of the city in which he or she is residing, or with the sheriff of
the county if he or she is residing in an unincorporated area or a city that
has no police department.
[Citation.] Registration must be
made within five working days of ‘coming into, or changing his or her residence
within’ any city, county, or city and county.
[Citation.]†(
to be transients within the meaning of the law.
(Ibid.) Transients must reregister every 30 days;
offenders with residences must reregister annually. (Ibid.)
Here, there was substantial evidence from which the
jury reasonably could have concluded that Cuevas resided or was physically
present as a transient in California during the relevant time periods. In the 2010 failure to register, Cuevas had
told Abundis that he was a transient and that he was homeless. She explained how to register as a transient
and the requirement to register within five days, and Cuevas agreed. Cuevas also agreed that he would stay in
California unless he received permission from his parole agent to leave. Cuevas was taken into custody again two
months later in Los Angeles County.
In the course of notifying Cuevas of his registration
requirement in 2011, Cogill asked Cuevas where he planned to live. Cuevas indicated he would live with his girlfriend,
whom Cogill believed to live in Torrance.
It appeared, however, that she might reside too close to a park or
school for Cuevas to live with her, so Cogill explained how to register as a
transient. Cuevas agreed to register as
a transient, and he told Cogill that he would be living in Los Angeles County. Cuevas also agreed to the parole condition
requiring him to obtain permission before leaving the state, and he never
sought permission to leave. There was no
indication in Cuevas’s law enforcement file of Cuevas being extradited to
California at any point in 2010 or 2011.
In light of this evidence of Cuevas’s regular presence
in California, the absence of any extraditions, his multiple apprehensions in California,
and his expressed intent to stay in Los Angeles County, the jury could
reasonably conclude that Cuevas resided, or was physically present as a
transient, in California without reregistering as a sex offender within five
days of being released from incarceration.
Cuevas contends that People v. Wallace (2009) 176 Cal.App.4th 1088 mandates reversal
here. In Wallace, a sex offender had complied with registration requirements
for several years and had last registered in Contra Costa County in January 2006. (Id.
at pp. 1093-1094.) In April 2007
his last known address was determined to be vacant. (Id. at
p. 1094.) Wallace’s conviction for
failing to register within five working days of changing his address or
location was overturned because there was no evidence of his location in April
2007 and no evidence “sufficient to permit a reasonable inference that
appellant remained in California during that time
period.†(Id. at p. 1103.)
Moreover, the then-applicable jury instruction did not advise the jury
that the defendant was required to reside within California at the time of the charged
offense to convict. (
instructed that the prosecution had to prove that “defendant resided in or was
physically present as a transient in California†and that he “failed to
register as a sex offender with the police chief of the city or the sheriff of
the county in which he resided or was physically present as a transient within
five days of release from incarceration†to be guilty of failing to register,
the record, as discussed above, from which a reasonable jury could conclude
that Cuevas had remained in California at all relevant times. Wallace
does not require any other outcome here.
II. Alleged
Instructional Error
As given, CALCRIM No. 1170 provides that the
prosecution must prove four listed elements:
(1) “The defendant was previously convicted of an offense for which the
defendant is required to registerâ€; (2) “The defendant resided in or was
physically present as a transient in Californiaâ€; (3) “The defendant actually
knew he had a duty under Penal Code section 290 to register as a sex offender
and that he had to register within five working days of release from
incarcerationâ€; and (4) “The defendant willfully failed to register as a sex
offender with the police chief of the city or the sheriff of the county in
which he resided or was physically present as a transient within five working
days of release from incarceration.â€
modified to mention in the fourth element that the defendant must at the time
of the failure to register be living in California, and this request was
denied.
Cuevas contends that CALCRIM No. 1170 fails to communicate
to the jury that the accused must have been residing or physically present as a
transient in California at the time of the offense, and that it permits a jury
to convict a defendant for failing to register as long as he had resided in or
was physically present as a transient in California at any time. Cuevas offers no authority to support his
reading of the statute, nor are we aware of any; moreover, we agree with the
trial court that this construction of the instruction was “
“tortured.†The second element of the
offense is that the defendant “resided in or was physically present in California.†(CALCRIM No. 1170.) While the second element does not
specifically refer to the time when the accused must be resident or present in
California, the timing is provided by the fourth element of the
instruction: “The defendant willfully
failed to register as a sex offender with the police chief of the city or the
sheriff of the county in which he resided or was physically present as a
transient within five working days of release from incarceration.†(CALCRIM No. 1170.) The reference in the final element to the
city and/or county in which the person was residing or physically present
clearly calls back to the second element and the requirement that the city or
county of residence/presence be in California. Reading the instruction as a whole, we do not
believe that there is a reasonable likelihood that the jury understood the
instruction as Cuevas posits (People v.
Kelly (1992) 1 Cal.4th 495, 525-526), particularly in light of defense
counsel’s closing argument emphasizing that “element no. 4 is linked to element
no. 2. The defendant had to have been
residing or physically present in California while he willfully failed
to register as a sex offender.†We
therefore find no error in refusing the requested modification.
III. Denial
of Romero Motion
Cuevas asserts that the trial court
abused its discretion when it denied his motion to strike his prior convictions
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 for
the purposes of applying the Three Strikes Law.
In deciding whether to strike a prior serious and/or violent felony
conviction allegation or finding under the Three
Strikes Law, the court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies.â€
(People v. Williams (1998) 17
Cal.4th 148, 161 (Williams).) We review rulings on motions to strike prior
convictions for an abuse of discretion.
(Id. at p. 162.)
Cuevas argues that his prior
strikes should have been stricken because the court considered the nature and
number of his convictions without giving due consideration to the nature of his
current offense and other individualized factors, specifically that his present
offenses were nonviolent; registration offenses were routinely treated as
second strike cases by the District Attorney; his most recent strike was more
than ten years old; and he would have had a lengthy sentence of seven years,
four months even if the strikes had been stricken. Had the court properly weighed the relevant
considerations, he contends, the court would have found that he was outside the
spirit of the Three Strikes Law.
We have reviewed the transcript of
the hearing on the Romero motion and
conclude that, contrary to Cuevas’s contention, it is apparent that trial court
discharged its duty to consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, Cuevas
should have been deemed outside the scheme’s spirit. (Williams,
supra, 17 Cal.4th at
p. 161.) The trial court discussed
these considerations when ruling, noting that the present offenses were
nonviolent and were not themselves strikes.
The court noted that Cuevas’s prior convictions were for very serious
offenses: “The arson for which he was
given probation, ultimately violated probation, got a prison commitment of
three years. The other strikes are much
more serious in nature[,] involving the lewd act for which he ultimately
received eight years in prison, the child being under 14. The robbery of the female employee was
particularly of a vicious nature. He
received nine years on that concurrent with the lewd act matter. [¶] The
defendant’s conduct during his life is what the prosecutor indicated,
continuous criminal activity, on parole.
He has removed bracelets to prevent his whereabouts being detected by
the authorities. So his conduct on
probation and parole has been poor. His
conduct in the past has shown he’s an extreme danger to the community and is
not open to rehabilitation.†The court
acknowledged that Cuevas’s present offenses were nonviolent “low-grade
felon[ies],†but concluded that “the other circumstances indicate that he is
the kind of person that the three-strike law was designed to deal with, and
that is to prevent future harm to society.â€
The court’s comments demonstrate that it had considered the nature and
circumstances of Cuevas’s present felony and his prior serious and/or violent
felony convictions, as well as the circumstances of his background, character,
and prospects, and the court concluded that in light of his consistent serious
criminal activity, his efforts to evade supervision on parole, and his
resistance to rehabilitation, Cuevas could not be considered to be outside the
scheme’s spirit such that sentencing him as a third strike offender would be
unjust. (Ibid.)
The court’s determination was not
an abuse of discretion. The record
reveals no basis for concluding that Cuevas is outside the spirit of the Three
Strikes Law. Cuevas has an extensive
criminal record beginning with a conviction for grand theft person (former
§ 487, subd. (2), now § 487, subd. (c)) in February 1989, and a
sentence of county jail plus three years of probation. Only months later, in May 1989, he was
convicted of arson (§ 451, subd. (d)) and sentenced to county jail plus
three months of probation. He violated
that probation later the same year when he was convicted of possession of a
controlled substance (Health & Saf., § 11350, subd. (a)), leading to a
three-year state prison sentence. He was
released on parole in April 1991, and in April 1993 he was convicted of
burglary (§ 459) and sentenced to two years in state prison. In May 1994, Cuevas was released on
parole. In August 1994, he violated his
parole and was returned to prison. In
August 1995, he was paroled again, but violated his parole in December
1995. On December 28, 1995, Cuevas was paroled, but six days later
he was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) and
sentenced to county jail and three years of probation. On August
2, 1996, he was convicted of corporal injury to a spouse
(§ 273.5) and sentenced to county jail.
He violated his parole multiple times between November 1996 and May
1998.
Cuevas was convicted of robbery
(§ 211) on August 28, 2000,
and was sentenced to nine years in prison.
He was convicted of a lewd and lascivious act on a child under the age
of 14 years (§ 288, subd. (a)) in April 2002 and was sentenced to eight
years in prison. He was paroled on January 28, 2010, and that parole was
revoked in April 2010. He was again
paroled on October 30, 2010,
and he immediately committed one of the instant offenses by failing to register
as a sex offender. After he was again
paroled in June 2011, he committed the second of the instant offenses.
Cuevas argues that his most recent
strike was over ten years old, but the age of a strike is not a reason to
strike it when a person has engaged in consistent criminal activity over the
intervening years. (Williams, supra, 17
Cal.4th at p. 163 [13 years elapsing between strike offense and present
offense not significant given the failure to refrain from criminal activity in
the interim]; People v. Gaston (1999)
74 Cal.App.4th 310, 320-321 [remoteness of strike priors not significant in
light of “unrelenting record of recidivism†and failure to lead a crime-free
life in the interim].) Although he
argues that the present offenses are nonviolent, that fact does not remove him
from the spirit of the Three Strikes Law, because the law intends to ensure
longer prison sentences for defendants who commit felonies after having
qualifying strikes. (
felonies—indeed it is not defined as a ‘serious felony’—it is far from
trivialâ€].) He then asserts that third
strike failure to register cases are routinely settled for 32 months or less
and that they are treated as second strike cases, but his characterization of
how cases are “routinely†handled, based on an assertion made by defense
counsel at the Romero hearing, does
not establish that he is outside the spirit of the Three Strikes Law or that
handling the case differently was an abuse of discretion. Finally, Cuevas’s assertion that his non-strike
sentence of seven years, four months would be lengthy, in the interests of
society, and consistent with his right to a proportionate punishment does not
demonstrate any abuse of discretion. The
trial court acted well within its discretion in determining that in light of
Cuevas’s present offenses and criminal history, as well as his background,
character, and prospects, he should not be deemed outside the spirit of the
Three Strikes Law.
DISPOSITION
The judgment is affirmed.
ZELON,
J.
We
concur:
WOODS, Acting P. J.
SEGAL, J.
name="_ftn1" title="">
Unless otherwise indicated, all further statutory
references are to the Penal Code.
name="_ftn2" title="">
We acknowledge that Cuevas separately challenges the
adequacy of this jury instruction; we address this contention in Section II,
