P. v. Singletary

Filed 5/20/08 P. v. Singletary CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg

L. Prickett, Judge. Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

Cary Odell Singletary was convicted of three counts of failing to register as a sex offender. (Pen. Code,  290.)[1] Two of the counts were based on his failure to register within five days of changing his residence ( 290, subd. (a)(1)(A)), and the other count was based on his failure to register within five days of his birthday ( 290, subd. (a)(1)(D)). Arguing his failure to register constituted a single continuing offense, he contends he should only have been convicted of and punished for one of the counts, not three. He also contends the courts definition of reasonable doubt was flawed, and its failure to define the term reside mandates reversal. We reject his arguments and affirm the judgment in its entirety.

FACTS

Singletary was born on November 23, 1959. Following his 1995 conviction for felony sexual assault, he was required to register as a sex offender. He did so for several years, with his last registration coming on September 14, 2005. At that time, he reported to the Fullerton Police that he was living at the Grand Inn Hotel in Fullerton.

A month later, on October 13, Singletary checked out of that hotel. Then, on November 4, he told the Fullerton Police as part of an auto theft report he was making his address was 3020 East Yorba Linda Boulevard, in Fullerton. He also reported he was no longer staying at the Grand Inn Hotel.

On December 6, 2005, Singletary checked into the Homestead Suites Hotel in Brea. He told the manager he would be staying there at least two or three months, and possibly up to a year. However, he was arrested at the hotel on December 23 for failing to register. At the time, he said he had been staying there for a couple of days and had moved out of the Grand Inn Hotel two weeks earlier.

Following a jury trial, Singletary was convicted of three counts of failing to register as a sex offender. The court also found he had suffered two prior strike convictions and served three prior prison terms. The court struck one of the strikes and sentenced Singletary to six years and four months in prison, calculated as follows: Four years on count 1, four years (to run concurrently) on count 2, sixteen months on count 3, and one year for his prior prison time.

I

Singletary claims he is guilty of but one criminal act the ongoing failure to register and therefore he should have been convicted of but one count of failing to register. The point is not well taken.

We begin our analysis with section 290.[2] Under that section, a sex offender is required to register with the chief of police of the city in which he or she is residing

. . . within five working days of coming into, or changing his or her residence within, any city . . . in which he or she temporarily resides. ( 290, subd. (a)(1)(A).) In addition, [b]eginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday . . . . ( 290, subd. (a)(1)(D).)

The purpose of section 290 is to assure sex offenders are readily available for police surveillance at all times due to their propensity to reoffend. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) When, as here, the defendants duty to register stems from the commission of a felony offense, he is guilty of a felony if he willfully violates any requirement of the statute. ( 290, subd. (g)(2).)

Singletary does not dispute he violated section 290 three different times: Once by failing to register with the Fullerton Police after changing his residence in that city ( 290, subd. (a)(1)(A)); once by failing to register within five days of his birthday ( 290, subd. (a)(1)(D)); and once by failing to register with the Brea Police within five days of coming into that city ( 290, subd. (a)(1)(A)). However, he argues all three counts took place as part of a continuing course of conduct during a relatively brief period of time, and therefore the three separate charges involved a single, ongoing violation of section 290, subdivision (g). In so arguing, he claims the essence of the crime of failing to register is simply not complying with any of the requirements of section 290. Therefore, it is immaterial how many times or ways he violated the statute; he should only have been convicted of one count, not three.

We cannot agree. Singletary correctly points that in subdivision (g)(8) of section 290 the Legislature characterized the failure to register as a continuing offense. ( 290, subd. (g)(8).) But the full text of that subdivision, which Singletary conveniently omits, provides that [a]ny person who is required to register under this section who willfully violates any requirement of this section is guilty of a continuing offenses as to each requirement he or she violated. (Ibid., italics added.) This indicates the failure to comply with multiple requirements should be treated as multiple criminal acts. Indeed, in a case where the defendant was convicted of violating two different provisions of section 290, our Supreme Court observed that [a] defendant may clearly be convicted of violating both parts of the statute. (People v. Britt (2004) 32 Cal.4th 944, 951.)

That is also what the court decided in People v. Meeks (2004) 123 Cal.App.4th 695. The defendant there was convicted of two counts of violating section 290, based on his failure to register within five days after changing his address and within five days of his birthday. He argued his failure to register on these two occasions was but one continuing offense, but the court rejected this argument:

The Legislature has found it imperative for the safety of society that the location of sex offenders be known to law enforcement at all times, thus requiring defendants subject to section 290 to reregister annually and upon a change of location serves that purpose by providing law enforcement with updated information through which it may track these defendants. It would ill serve the purpose of section 290 to provide defendants who fail to register with blanket immunity from prosecution for all but a single failure to register. A defendant who knows that he is subject to prosecution for each violation of the registration requirement is more likely to comply in order to avoid additional punishment and is more likely to become visible again to law enforcement. Thus visible, he arguably is less likely to repeat his sexual crimes. By requiring defendants to register annually and with every change of residence, it was no doubt the Legislatures 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 offenders whereabouts remain known. (People v. Meeks, supra, 123 Cal.App.4th at pp. 702-703.)

We agree. Singletary was not subjected to multiple convictions based on a single act or omission, which would have been improper. (See People v. Rouser (1997) 59 Cal.App.4th 1065, 1073 [single act of possessing multiple items of contraband cannot be fragmented into more than one offense]; People v. Harris (1977) 71 Cal.App.3d 959 [same]; also compare People v. Thomas (1994) 26 Cal.App.4th 1328 [single act of kidnapping with intent to rob cannot be divided into multiple counts based on defendants conduct during abduction].) Instead, he was properly subjected to multiple convictions for multiple criminal acts (People v. Meeks, supra, 123 Cal.App.4th at p. 703), i.e., twice failing to register within five days of changing his address and also failing to register within five days of his birthday. As these omissions constituted separate offenses, Singletary was properly convicted of three counts of violating section 290. (Ibid.; People v. Davis (2002) 102 Cal.App.4th 377, 381-383.)

II

Relying on section 654, Singletary alternatively argues the court should have stayed his punishment on counts 2 and 3. Again, we disagree.

Section 654 provides, An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. ( 654, subd. (a).) Although section 654 speaks in terms of an act or omission, it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] (People v. Meeks, supra, 123 Cal.App.4th at p. 704.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] (People v. Britt, supra, 32 Cal.4th at pp. 951-952.)

In Britt, the defendant was convicted and punished for failing to comply with two separate registration requirements. Specifically, he moved once from one county to another within California without notifying the authorities in either county, and hence violat[ed] both subdivisions (a) and (f) of section 290[.] (People v. Britt, supra, 32 Cal.4th at p. 949, italics omitted.) He violated subdivision (a) by failing to notify the authorities in the county he left, and he violated subdivision (f) by failing to notify the authorities in the county he entered. (People v. Britt, supra, 32 Cal.4th at p. 952.) As noted above, the Britt court signaled its approval of multiple convictions in this situation. (Id. at p. 951.) However, it held that section 654 precluded multiple punishment because both of the violations had the same objective to prevent any law enforcement authority from learning of [the defendants] current residence. (People v. Britt, supra, 32 Cal.4th at p. 952.) In so holding, the court emphasized that objective was achieved just once, by the defendants act of changing residence on a single occasion. (Id. at p. 953.)

Here, in contrast, Singletary violated section 290 by failing to register on multiple occasions. Indeed, there were three separate events (two moves and a birthday) that triggered his obligation to register under section 290. While he may have been motivated by the singular objective to avoid police surveillance, that objective was achieved on consecutive occasions, each time he failed to register. That circumstance renders Singletary subject to multiple punishment. (See People v. Britt, supra, 32 Cal.4th at p. 953 [noting that in People v. Perez (1979) 23 Cal.3d 545 multiple punishment was sanctioned against a defendant who committed multiple sex offenses against a victim because although his only objective for the crimes was sexual gratification, that objective was achieved with each offense, in a consecutive fashion].)

Again, Meeks is instructive. In upholding multiple punishment against the defendant there, the court noted, 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. (People v. Meeks, supra, 123 Cal.App.4th at p. 706.) The court explained, [T]he purpose of section 654 is to insure that a defendants 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 moves without notifying authorities, or repeatedly allows a birthday to pass without registering, is surely more culpable than one who fails to register following only one triggering event. Section 654 does not prohibit the multiple punishments imposed in this case. (People v. Meeks, supra, 123 Cal.App.4th at pp. 705-706.)

The same rationale applies here. Because Singletary violated section 290 on three separate occasions, he seems to us clearly deserving of multiple punishment. Therefore, we reject his claim that the court erred in failing to apply section 654.

III

Singletary also contends his sentence violates double jeopardy principles because he was punished three times for the same offense. It is true that the Double Jeopardy Clause protects against multiple punishments for the same offense. [Citation.] [Citation.] (People v. Sloan (2007) 42 Cal.4th 110, 121.) However, that protection only comes into play when the defendant is found guilty of multiple crimes arising from a single act (3 Witkin and Epstein, Cal. Crim. Law (3d ed. 2000) Punishment,  134, p. 198) and then only when such occurs in successive proceedings

. . . . (People v. Sloan, supra, 42 Cal.4th at p. 121, italics omitted.) Because Singletarys three convictions arose from three separate acts and but one trial, his punishment does not violate double jeopardy principles.

IV

Next, Singletary contends CALCRIM No. 220, the standard instruction on reasonable doubt, violates due process. We join the chorus of appellate court decisions that have rejected this contention.

Per CALCRIM No. 220, the court instructed that Singletary was presumed innocent and that the People had the burden to prove the charges beyond a reasonable doubt. The court also told the jurors that [i]n deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. (CALRCIM No. 220, italics added.) The judge defined evidence as the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. (See CALCRIM No. 222.)

Singletary contends that by directing the jurys attention to the evidence received at trial, CALCRIM No. 220 precluded the jury from considering the lack of evidence supporting the charges against him. However, as part of CALCRIM No. 220, the court told the jurors that [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. This clearly conveyed the importance of the absence of evidence to the jury. Indeed, it commanded the jury to acquit Singletary if it believed there was not enough evidence to prove his guilt beyond a reasonable doubt. Because the instruction as a whole reasonably informed the jury that the lack of evidence could lead to reasonable doubt, we find it to be constitutional, as has every other court that has considered the issue. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509; People v. Hernandez (2007) 151 Cal.App.4th 1154, 1156-1157.) No due process violation has been shown.

V

Lastly, Singletary contends the court erred in failing to sua sponte define the term resides for the jury. We find no error in this regard.

Pursuant to section 290, Singletary was required to register with the chief of police of the city in which he or she is residing . . . within five working days of coming into, or changing his or her residence within, any city . . . in which he or she temporarily resides. ( 290, subd. (a)(1)(A).) Section 290 does not define the terms residence or resides. However, when a phrase is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request. [Citation.] (People v. Rowland (1992) 4 Cal.4th 238, 270-271.) In other words, [c]ommonly understood terms need not be defined for the jury. [Citation.] (People v. McCleod (1997) 55 Cal.App.4th 1205, 1216.)

In McCleod, the court determined the word residence in section 290 is such a term. It explained the term simply connotes something more than passing through or making a limited visit at a particular place. (People v. McCleod, supra, 55 Cal.App.4th at p. 1218.) Therefore, it rejected the defendants contention that the trial court had a sua sponte duty to define the term for the jury. (Id. at p. 1219.)

So do we. In our view, the terms residence and resides are no more unusual or peculiar than other terms and phrases that have been deemed readily understandable to the average juror. (See, e.g., People v. Hamilton (1989) 48 Cal.3d 1142, 1178 [financial gain]; People v. Anderson (1966) 64 Cal.2d 633, 639 [force or fear]; People v. Chavez (1951) 37 Cal.2d 656, 668 [perpetrate]; People v. Morse (1992) 2 Cal.App.4th 620, 643 [natural and continuous]; People v. Pitmon (1985) 170 Cal.App.3d 38, 51-52 [duress]; People v. Trapps (1984) 158 Cal.App.3d 265, 268-269 [reasonable and good faith]; People v. Brucker (1983) 148 Cal.App.3d 230, 238-239 [willful]; People v. Stewart (1979) 89 Cal.App.3d 992, 999 [amenable to medical treatment]; People v. Jones (1971) 19 Cal.App.3d 437, 446-447 [acting together, lawful custody, urg[ing], and clear and present danger]; People v. Watson (1971) 15 Cal.App.3d 28, 39 [creditor-debtor relationship]; People v. Robinson (1968) 266 Cal.App.2d 261, 268 [escape]; People v. Sanderson (1961) 190 Cal.App.2d 720, 722-723 [knowingly].) Therefore, the court did not err in failing to define them.

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

SILLS, P.J.

MOORE, J.

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[1] All further statutory references are to the Penal Code.

[2] In 2007, the Legislature amended section 290 and recast many of its provisions into the Sex Offender Registration Act. (See  290 et seq., added by Stats. 2007, ch. 579,  8, eff. Oct. 13, 2007.) However, our references to section 290 are to the statute as it existed in 2005, because that is when Singletarys offenses arose and that is the version of the statute he was prosecuted under.