P. v. Lopez









Filed 11/1/11 P. v. Lopez CA1/4




NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. BRENDA JASMINE LOPEZ, Defendant and Appellant.

A129470 (Contra Costa County Super. Ct. No. 050909440)

Brenda Jasmine Lopez (defendant) appeals from a judgment upon a jury verdict finding her guilty of failing to register within five days of leaving a registered address (Pen. Code,[1] § 290.013). She contends that the evidence is insufficient to support the verdict, that the court erred in giving CALCRIM No. 1170, and that it incorrectly responded to an inquiry from the jury. We conclude that the evidence is insufficient to support the verdict and therefore reverse.
I. FACTS
Ross Galay, an evidence technician with the San Pablo police department, testified that he was responsible for overseeing the sex offender registration program for the police department. In order to register, a registrant would either show up at the police department or call to make an appointment. Galay preferred registrants to make an appointment, because the registration process is long and complicated and requires a lot of preparation prior to meeting with a registrant. For example, Galay would need to prepare the forms, confirm a defendant’s criminal history, and conduct a Megan’s Law (§ 290.46) check on databases.
On June 17, 2009, defendant met with Galay for a scheduled appointment to register as a sex offender. Defendant gave her address as 2451 Church Lane, Apartment C3 in San Pablo (Apartment C3). As part of the registration process, Galay explained to defendant that if she changed her registered address, she was required to inform the last registering agency within five days before leaving the address or if she did not know her new address, she must notify the last registering agency of the new address within five working days of moving to the new address. As defendant did not have proof of her residence address, Galay informed her that she was required to provide documentation of her address within 30 days.
Defendant thereafter called Galay on July 2 and 10 and left messages. Galay did not recall what she said; his notes for the July 2 call said simply, “J14” and a telephone number. Defendant called again on July 10 and left a telephone number. Galay could not recall her message, but surmised that she wanted to register the J14 address. Galay tried to call defendant back on July 14, 16, and 21 but did not reach her and could not leave a message because the telephone line was not set up to receive a message.
Since Galay could not reach defendant, he referred the matter to Detective Rick White, the sexual assault investigator, because he believed that she was not in compliance with her registration requirement. White provided Galay with a different telephone number for defendant; it was almost the same number Galay had but the last two digits were different.[2] Before he could call defendant at the new number, she called him and left a message saying she wanted to register. Galay called her on July 23 and made an appointment for her to come in that day at 3:00 p.m. When defendant registered that day, she provided her address as 2451 Church Lane, Apartment J14[3] in San Pablo (Apartment J14).
John Lair, the manager of the mobile home park at 2451 Church Lane in San Pablo, testified that Cherie Shaw rented Apartment C3 at the mobile home park in June 2009 and moved to Apartment J14 on July 1, 2009. Lair said that defendant was a tenant at the mobile home park but she never lived in Apartment C3 or J14.
Manuel Jones, defendant’s probation officer, mailed a letter to defendant at the Apartment C3 address on July 8 indicating that she had an appointment to meet with him on July 22. Defendant spoke with Jones by phone on July 13 and confirmed that she had received the letter and would meet with him on July 22. Defendant met with Jones at the probation office in Richmond on July 22 and he explained the terms and conditions of probation to her.
Neykkia Owens testified that she was defendant’s girlfriend and that they lived with her mother, Cherie Shaw, in Apartment J14. They had lived in Apartment C3 prior to moving to Apartment J14 but she could not recall the specific dates they stayed in either apartment. Owens was impeached with several prior felony convictions and was in custody at the time of her testimony.
The parties stipulated that defendant was convicted of a felony offense that subjected her to the mandatory registration requirements of section 290.
II. DISCUSSION
Defendant contends there is insufficient evidence to support the conviction for failure to register within five days of leaving a registered address. She argues that there was no evidence showing when she moved out of Apartment C3 to Apartment J14 to start the five-day period under which she was required to register under section 290.013, subdivision (a).
We review the judgment under the substantial evidence standard. (People v. Hatch (2000) 22 Cal.4th 260, 272.) Under this standard, we must review “ ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Ibid., quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) If the circumstances reasonably justify the verdict, we cannot reverse merely because a contrary finding might also be reasonably deduced from the circumstances. (People v. Redmond (1969) 71 Cal.2d 745, 755.) We will reverse only if it “clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].” (Ibid.)
Section 290.013 mandates that “[a]ny person who was last registered at a residence address pursuant to the [Sex Offender Registration 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 . . . 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, the new address or transient location, if known . . . .” This requirement serves to further law enforcement efforts by helping them keep track of sex offenders who move within the same city or county or are transient. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) “Ensuring offenders are ‘readily available for police surveillance’ [citation] depends on timely change-of-address notification. Without it law enforcement efforts will be frustrated and the statutory purpose thwarted.” (Ibid.)
Here, the evidence shows that defendant met with Galay on June 17, 2009 and registered her address as Apartment C3. On July 2, 2009, she called Galay and left a message. Galay, however, could not recall the specifics of the message, and his notes indicated only defendant’s telephone number and the notation, “J14.”[4] While Galay surmised at trial that defendant had probably moved and was calling to schedule an appointment to register the new address, his testimony does not establish this fact. Galay testified as follows concerning the July 2 telephone call: “[MS. CHOW (deputy district attorney)]: Do you recall—let’s start with July the 2nd, first. Do you recall when that message was left‌ [¶] [MR. GALAY]: Do I recall when that message was left‌ That was on July 2. [¶] [MS. CHOW]: Do you know what time‌ [¶] [MR. GALAY]: At about 16:00 hours, 4:00 o’clock in the afternoon. [¶] [MS. CHOW]: And what did the defendant actually say if you remember‌ [¶] [MR. GALAY]: Just—just on my notes, it says J14. [¶] [MS. CHOW]: So then do you recall what the message actually said‌ [¶] [MR. GALAY]: My recollection is just by looking at the note. It’s—it’s J14 which tells me it’s a—it’s an apartment number, it’s an address, and a telephone number, a call back number.”
Galay’s recollection of defendant’s July 10 telephone message was similarly deficient: “[MS. CHOW]: Okay. And do you recall what she said on July the 10th‌ [¶] [MR. GALAY]: It’s about registering. [¶] [MS. CHOW]: Okay. [¶] [MR. GALAY]: And then [defendant] left a telephone number. [¶] [MS. CHOW]: Did she actually—do you—do you know, do you remember did she actually ask for an appointment‌ [¶] [MR. GALAY]: I do not really recall, you know, the actual [conversation]—you know, what the actual message was. But just looking at what I jotted down, listening to the message, it’s probably to the effect that she wanted to register on that address.” Galay’s testimony thus did not recall defendant’s telephone messages of either of the calls on July 2 or July 10, and his notes for both calls indicated only the notation, “J14” and a telephone number. In fact, Galay did not remember the July 2 call at all until after defendant was charged in this case and the prosecutor informed him that the phone records showed defendant had called on July 2. In sum, Galay’s testimony failed to prove that defendant had moved to Apartment J14.
Nor was there any other credible evidence of the date that defendant moved from Apartment C3 to Apartment J14. While Lair, who managed the mobile home park, testified that Cherie Shaw moved from Apartment C3 to Apartment J14 on July 1, 2009, he also testified that defendant never lived at either apartment. Owens, in turn, testified that she and defendant moved to Apartment J14 with Shaw in July, but she could not recall the date.
In contrast, there was evidence that defendant had not moved in early July. Jones, defendant’s probation officer, sent defendant a letter to Apartment C3 on July 8, and defendant confirmed she received the letter when she spoke with Jones on July 13. In short, there is no evidence of the date defendant actually moved. Thus, it cannot be determined with any certainty when the five-day period in which defendant was required to register began.
There is also evidence that defendant made efforts to comply with the requirement that she register after moving to a new address. Galay testified that defendant called twice in early July—July 2 and July 10. The evidence is lacking as to the purpose of the call. She could have been calling to schedule an appointment to register a new address or perhaps she sought to supply evidence of the address she provided on June 17, 2009. In any event, the evidence fails to show that defendant willfully failed to register.[5] To the contrary, defendant called twice presumably to make an appointment for the registration process—following Galay’s instructions.[6] On this record, the evidence is insufficient to support the verdict.
III. DISPOSITION
The judgment is reversed. In light of our disposition, we need not reach the other issues raised by defendant.





________________________
RIVERA, J.



We concur:




___________________________
RUVOLO, P. J.




___________________________
REARDON, J.




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