P. v. Toca
Filed 9/19/12 P. v. Toca CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GERALDO TOLEDO
TOCA,
Defendant and Appellant.
B230396
(Los Angeles
County
Super. Ct.
No. KA089833)
APPEAL from
a judgment of the Superior Court
of
County.
Bruce F. Marrs, Judge.
Reversed in part and affirmed in part.
David M.
Thompson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Douglas L.
Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Geraldo
Toledo Toca (Toca) was convicted of failing to register as a sex offender as
required by Penal Code section 290.015, subdivision (a)
(count 1); failing to update sex offender registration annually in violation of
section 290.012, subdivision (a) (count 2); and giving false information to a
police officer in violation of section 148.9, subdivision (a) (count 3). He was sentenced pursuant to the Three
Strikes Law. Toca challenges his
conviction on count 1 based on insufficiency of the evidence and
erred by not striking at least one prior conviction allegation. We reverse the conviction under section
290.015, subdivision (a). In all other
respects, we affirm.
FACTS
In 1981,
Toca was convicted in
of committing rape and robbery while using a deadly weapon. He was sentenced to Nevada
state prison and was not released until 2000 or 2001.
concealed dagger in violation of section 12020, subdivision (a)(4) and
possession of controlled substance paraphernalia in violation of Health and
Safety Code section 11364. He was placed
on probation for two years and sentenced to four days in county jail. In the same year, he was convicted of taking
a vehicle without consent in violation of Vehicle Code section 10851,
subdivision (a), sentenced to 365 days in county jail and placed on probation
for three years. In 2005, he was
convicted of possession of controlled substance paraphernalia and sentenced to
60 days in county jail. On multiple
occasions, his probation was revoked on the 2003 conviction for taking a
vehicle without consent and sent to country jail or prison.
Pursuant to
section 290, Toca registered as a sex offender in the City of Pomona
(Pomona) on October 6, 2005, December 21, 2005, March 29, 2006, and October 11, 2006.
But after October 11, 2006,
he did not register in Pomona or anywhere
else in California.
In
September 2007, Toca was convicted of receiving stolen property in violation of
section 496, subdivision (a), possession of burglary tools in violation of
section 466 and giving false information to a police officer in violation of
section 148.9. He was sentenced to 30
days in county jail.
Effective
October 2007, the Legislature enacted section 290.015. Section 290.015, subdivision (a)
provides: “A person who is subject to
the [Sex Offender Registration Act] shall register, or reregister if he or she
has previously registered, upon release from incarceration, placement,
commitment, or release on probation pursuant to subdivision (b) of Section
290.â€
Toward the end of 2007, Toca was
convicted of a failure to register in violation of section 290. He was sentenced to 32 months in
19, 2010, he was released on parole.
Toca did
not reregister as a sex offender upon his release.
On June 3, 2010, Pomona
police officers entered a condemned house near a high school and encountered
seven people, including Toca. The
officers questioned Toca and he provided a false name and date of birth. He was arrested for providing false
information to a police officer.
The Los
Angeles District Attorney charged Toca with two counts of failing to register
as a sex offender and one count of providing a police officer with false
information. As to count 1, it was
alleged that Toca violated section 290.015, subdivision (a) by failing to
provide true registration information.
alleged that Toca’s convictions for rape and robbery in Nevada qualify as prior
convictions within the meaning of sections 667, subdivisions (b) through (i)
and 1170.12, subdivisions (a) through d), and that the prison terms he served
in connection with his 2003 conviction for taking a vehicle without consent and
his 2007 conviction for failure to register as a sex offender qualify as prior
prison terms within the meaning of section 667.5, subdivision (b).
In a
pretrial discussion, defense counsel
questioned “the choice of the language that [the prosecutor] used, his office
used, in [c]ount 1[,] which is the failure to provide true registration
information.†Defense counsel
stated: “[A]s I try to read the code and
figure this thing out, it almost sounded like it’s willfully giving false
information to the police.†The trial court
replied: “It certainly seems fairly
close to that. Yes.†According to defense counsel, the false
information issue “comes up again in [c]ount 3.†He added:
“So I’m not sure, I was never sure exactly what they’re driving at in
[c]ount 1.â€
The prosecutor
weighed in, stating, “I can clarify. If
when you look at [section] 290.015, it actually goes to, as the judge just
alluded to, . . . there’s two ways [you can] violate under [CalCrim No.]
1170 . . . . [If] you don’t update your
residence status, whether new house or transient or anything of that nature,
within 5 business days of moving within a city, moving between counties, moving
between states. And that’s the sum and
substance of [c]ount 1.â€
The trial
court agreed. The prosecutor added: “Our system prints out this definition, but
basically that’s the People’s theory, is that he did not properly update his
residence status and location.â€
Defense
counsel continued, stating, “But the language that they used, that the computer
used at least, is failure to provide true information. It almost sounds like okay, you gave us
information, but it wasn’t true. So the
flip side of that is you actually gave us false information. [¶] In
other words, it seems like the crime here that they’re targeting, at least in
the language, is not that he failed to go down and register
. . . , but when he gave any information at all, it was false
information to avoid the registration process.
[¶] Because they use the word
failure to provide true information like he gave information but it was
untrue.â€
When
defense counsel said that he was still confused, the trial court said, “Well,
[defense counsel], you’re in good company.
I’m regularly in that position.â€
The parties
stipulated that Toca “was previously convicted of an offense which required him
to register pursuant to Penal Code section 290.â€
In his
opening statement, the prosecutor stated:
“The People expect the evidence to show that [Toca] had a duty to register
as a sex registrant. Pursuant to that
duty, he was to register on his birthday or 5 days after his birthday, as well
as any time he changed his residences or became transient. That the defendant was so advised of these
obligations and the defendant did not comply with these obligations. [¶]
And that on June 3rd, after not registering for his birthday and his
change of residence, he was located in the City of Pomona, and he gave a false
name to an officer, which was later determined to be false. [¶] And the People expect these are the facts,
this is evidence you’ll hear, and at the end of trial that those will be the
facts and evidence you’ll have to consider on whether or not he’s guilty.â€
Officer
Ronald Ramirez of the Pomona Police Department was called to the witness stand
first. He testified regarding the events
that transpired on June 3, 2010, when Toca was arrested. Next, the prosecution called Annette Flores
(Flores) to testify. At the time, she
was assigned to the Detective Bureau in the Pomona Police Department, and her
official title was Administrative Assistant to the Sex Crimes Division. She testified that she handles sex
registration in Pomona. Flores explained
that a sex offender must register annually on his birthday if there is no
change in residence. If there is a
change in residence, or if the sex offender becomes transient, he must update
his registration. In each instance,
registration must be within five days.
Flores was familiar with Toca because she dealt with his previous
registrations. According to Flores, Toca
had last registered in Pomona in March 2006.
The People
rested. The defense made a motion to
dismiss under section 1118.1 and the motion was denied.
The defense
did not call any witnesses.
As to count
1, the trial court instructed the jury pursuant to a modified version of CalCrim
No. 1170 and stated that Toca is “charged . . . with
failing to register as a sex offender, in violation of
. . . section 290[, subdivision] (b) and [section] 290.015[,
subdivision] (a). [¶] To prove [Toca] is guilty of this crime, the
People must prove 1, [Toca] was
previously convicted of a registerable offense; 2, [Toca] resided in
California; 3, [Toca] actually knew he had a duty to register as a sex offender
under . . . section 290 within 5 working days of his birthday
. . . ; 4, [Toca] willfully failed to register as a sex offender
with the police chief of that city within 5 working days of coming into or
changing his residence within that city.â€
In the
prosecutor’s closing argument, he argued that Toca willfully failed to register
as required by section 290 when he changed his residence to the condemned
house; he willfully failed to register annually; and he willfully provided
false information to the police. The
prosecutor did not argue that Toca failed to register after being released from
prison.
The jury
convicted Toca on all counts.
The trial
court found true the allegations that Toca suffered prior convictions for rape
and robbery in Nevada and that he served prior prison terms after being
convicted of taking a vehicle without consent and failing to register as a sex
offender. Defense counsel moved to
strike at least one the conviction priors pursuant to the trial court’s discretion
under People v. Superior Court (
The trial court denied the motion, stating: “I would note that after the sentence in
1981, [Toca] spent a very substantial period of time in Nevada State Prison,
turned around in [2003] and picked up a California prison sentence. On that he was violated in [2007], violated
again in [2009]. [¶] He may not specifically have been told at the
time of the Nevada prosecution that he was going to have to register in
California or some other state if he moved.
But rape and robbery are clearly very serious violent crimes. He may not have been told specifically, but
common sense would tell you that there would be consequences to those kinds of
convictions. [¶] But the most important thing in this
particular case and the thing I’m focusing on, he’s already been to prison once
on a [section] 290 violation, and he was on parole and probation at the time of
the commission of this particular offense.
And I can’t get around that. And
those facts by themselves put him right square in the [three] strikes
legislation. [¶] Yes, he’s approaching the upper age range
that [three] strikes was aimed at. But
he either cannot or will not conform his behavior to the requirements of the
law. Therefore, [the]
both strikes.â€
On count 1,
Toca was sentenced to 25 years to life pursuant to the Three Strikes Law, and
he was given two years for the prior prison term findings. On count 2, he received a sentence of 25
years to life. And as to count 3, he
received a six-month misdemeanor jail sentence.
The sentences on these last two counts were ordered to run concurrently with
the sentence on count 1.
This timely appeal followed.
I. Count 1 was not supported by
sufficient evidence.
According to Toca, the People
failed to prove that he violated section 290.015, subdivision (a). We agree.
The prosecution had the burden of
proving every element of count 1. (
260.) “To determine whether the
prosecution has introduced sufficient evidence to meet this burden, courts
apply the ‘substantial evidence’ test.
Under this standard, the court ‘must review the whole record in the
light most favorable to the judgment below to determine whether it discloses
which is reasonable, credible, and of solid value—such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]â€
(Id. at pp. 260–261.)
Section
290.015, subdivision (a) provides that a sex offender must register pursuant to
section 290, subdivision (b) upon release from incarceration or release on
probation. Section 290, subdivision (b)
requires a sex offender to register within five working days of entering into
or changing his residence within a city.
Thus, for the prosecution to prevail, it was required to prove that Toca
was incarcerated after he last registered in 2006 and then failed to reregister
within five working days after his release on probation on January 19,
2010. A review of the record establishes
that the prosecution offered no evidence at trial to support these
elements. Thus, the conviction was not
supported by sufficient evidence.
The People contend that the
evidentiary gap is filled by the stipulation.
We disagree. The parties merely
stipulated to the existence of a prior conviction that required Toca to
register as a sex offender. But they did
not stipulate as to when he was convicted.
Per that stipulation, that conviction could have been long before Toca
last registered in 2006. In fact, as the
record shows, the conviction was in 1981.
The parties also did not stipulate that Toca had been released from
prison after he last registered, or that he had a duty to register by a
specific date after his release.
Moreover, Toca could not be convicted absent evidence that he willfully
violated section 290.015, subdivision (a).
(§ 290.018, subd. (b).) There was
no evidence that Toca had been informed of his duty to register under section
290.015.
A few more observations are
pertinent. The prosecutor and trial
court proceeded as though Toca had been charged with violating section 290,
subdivision (b). When the prosecutor was
explaining count 1 to defense counsel, he cited CalCrim No. 1170 as the controlling jury
instruction. That instruction pertains
to violations of section 290, subdivision (b) rather than violations of section
290.015, subdivision (a). When the trial
court instructed the jury on the substantive law pertaining to count 1, the
trial court used CalCrim
No. 1170. In his opening and
closing statements, the prosecutor never mentioned Toca’s incarceration and
subsequent release on January 19, 2010.
Thus, not only was the jury deprived of evidence regarding section
290.015, it was also deprived of argument and a jury instruction.
Count 1 must be reversed.
In light of our conclusion, we need
not consider Toca’s argument that he received ineffective assistance of
counsel.
II. The trial court did not abuse its discretion
when it denied Toca’s Romero motion
to strike at least one prior conviction.
Toca argues that one of the prior
conviction allegations should have been stricken because they both arose
out of the same incident in 1981 and are arguably remote; his subsequent crimes
were nonviolent; his failure to reregister in 2007 was a regulatory offense
that posed no direct or immediate threat to society; he is outside the spirit
of the Three Strikes Law; and if he was sentenced based on a second strike, he
would likely receive a sentence of eight years six months and he would not be
released from prison until he was 60 and no longer a threat to society.
This argument lacks merit.
In the furtherance of justice, a
trial court may strike a prior serious and/or violent felony conviction
allegation pursuant to section 1385, subdivision (a). (People
v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) When deciding whether to strike a prior
conviction, “the court in question 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.†(Id.
at p. 161.) As stated in
500, a “defendant’s sentence is also a relevant consideration when deciding
whether to strike a prior conviction allegation; in fact, it is the overarching
consideration because the underlying purpose of striking prior convictions
allegations is the avoidance of unjust sentences. [Citation.]â€
Last but not least, when a trial rules on a Romero motion, it must remain mindful that the purpose of the Three
Strikes Law is to provide greater punishment for recidivists. (People
v. Acosta (2002) 29 Cal.4th 105, 127; People
v. Stone (1999) 75 Cal.App.4th 707, 717; § 667, subd. (b) [it is the intent of the Legislature
in enacting section 667 to “ensure longer prison sentences and greater
punishment for those who commit a felony and have been previously convicted of
serious and/or violent felony offensesâ€].)
A trial court’s denial of a motion
to strike prior felony conviction allegation is reviewed for abuse of
discretion. (Romero, supra, 13 Cal.4th
at p. 530.) An appellate court will presume that the trial court
“considered all relevant factors in the absence of an affirmative record to the
contrary. [Citation.]†(People v. Myers (1999) 69 Cal.App.4th 305,
310.) It is not enough for an
appellant “to show that reasonable people might disagree about whether to
strike one or more of his prior convictions.
Where the record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court’s ruling, even if we might have ruled
differently in the first instance. [Citation.]†(Ibid.) The burden is on the appellant “‘to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.]
In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside[.]’†(People
v. Superior Court (Alvarez)
Generally, the failure to strike a prior conviction
allegation is an abuse of discretion only if:
(1) a trial court is not aware of its discretionary power, (2) it
considers impermissible factors, or (3) the sentencing norms established by the
Three Strikes Law produce an arbitrary, capricious or patently absurd result in
a particular case. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
Below, the trial court expressly
considered the nature of the 1981 rape and robbery, calling them very serious
violent crimes. The trial court also
considered that Toca was convicted of failing to register after he had already
been convicted of failing to register in 2007 and served time in prison. Regarding his character, the trial court
noted that Toca cannot or will not conform his behavior to the requirements of
the law. As for Toca’s background and
prospects, the trial court presumably found that Toca has nefarious character
and poor prospects based on his past convictions, probation violations, and
prison sentences, and based on him being transient and living in a condemned
house next to a high school. The trial
court quite properly determined that Toca falls within the spirit of the Three
Strikes Law because he has repeatedly failed to register as a sex
offender. Last, the trial court
presumably considered whether Toca’s sentence was just.
The record establishes that the
trial court balanced the relevant facts and reached an impartial decision in
conformity with the controlling case law.
In other words, the trial court did not consider improper criteria. Nor is this case one in which application of
the Three Strikes Law is arbitrary, capricious or patently absurd.
Toca fits within the spirit of the Three Strikes Law because he is a
recidivist who has never stopped committing crimes, going to prison, or
violating probation and parole since 1981.
As a result, we perceive no abuse of discretion.
We easily reject Toca’s suggestion
that his Nevada convictions are too remote for purposes of the Three Strikes
Law. If a defendant lives a continuous
life of crime, as here, a prior conviction will not be deemed remote. (People
v. Pearson (2008) 165 Cal.App.4th 740, 749.)
It is true, as Toca points out,
that he has not committed a violent felony since 1981 and failure to register
as a sex offender is a regulatory offense.
But the third strike under the Three Strikes Law does not have to be a
violent crime. And, in any event, we
reject Toca’s attempt to minimize the severity of his offense.
The purpose of section 290.012 is to ensure that persons convicted of
the enumerated crimes shall be readily available for police surveillance
because they have been deemed likely to commit similar offenses in the
future. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196;
Cal.4th 521, 527 [“Plainly, the Legislature perceives that sex offenders pose a
‘continuing threat to society’ [citation] and require constant
vigilanceâ€].) The trial court impliedly
inferred that Toca evaded surveillance by failing to register while he was on
parole for the same offense, defeated the purpose of the statute and thereby
increased the possibility that would commit another sex crime. To make matters worse, he gave police
officers false information in 2010. By
his noncompliant behavior, Toca demonstrated that he was a continuing threat to
society.
Though Toca contends that he falls
outside the spirit of the Three Strikes Law, this contention is belied by the
fact that he has never stopped committing crimes, violating probation and
parole, and serving time in prison. Toca
suggests that he would be sent to prison for eight years six months if a prior
conviction allegation was stricken and this would be sufficient to punish him
and protect the public from any threat that he poses. But based on his background, failure to
register, decision to live in a condemned house near a high school (and
therefore in proximity to vulnerable children), and willingness to lie to
police, a longer sentence is appropriate because he has demonstrated that he
will not conform his behavior to the law.
In his reply brief, Toca contends
that reversal is dictated by People v. Cluff (2001) 87 Cal.App.4th 991 (
This contention lacks merit.
The defendant in
for failing to register within five days of his birthday. The Court of Appeal reversed the denial of
his Romero motion. It stated:
“This record strongly suggests that Cluff committed a ‘technical’
violation of section 290, without intent to deceive or evade law enforcement. Though he failed to annually update his
registration in San Mateo, Cluff consistently registered in the jurisdictions
where he resided. The annual updating
requirement was added to the Penal Code five years after Cluff left prison, the
new requirement was omitted from the only document he was allowed to keep in
1995 when he registered in San Mateo, and the updating requirement was itself
amended in 1996. When the police looked
for Cluff, he was living at his registered address. After the police contacted Cluff, he
immediately telephoned them and promptly came to the station. [¶]
Thus, Cluff’s Romero motion
did not lack substantial grounds on which the trial court might have exercised
its discretion to strike one or more strikes.
Cluff’s failure to confirm his address, by itself, posed no danger to
society. Cluff was exactly where he said
he would be when he registered in 1995, and the police were able to
quickly find him. The purpose of the
registration statute was not undermined by his failure to annually update his
registration. There was no indication he
had reoffended since he left prison in 1990, and [the testifying doctor]
believed that ‘with probation supervision and participation in a treatment
program’ Cluff would not reoffend.†(
fn. omitted.) Despite these facts,
the trial court found that Cluff intentionally tried to obfuscate where he was
actually living. According to the
was not supported by substantial evidence.
(Id. at p. 1004.)
The court did not reach Cluff’s
argument that a 25 years to life sentence violated the
remand, we note that the severe penalty imposed on Cluff appears
disproportionate by any measure. The
nature of Cluff’s current offense did not demonstrate recidivist tendencies
toward child molestation. While there is
no requirement that a third strike be a serious or violent felony, neither the
Legislature nor the voters intended the Three Strikes law to be used as a
nuisance statute to rid society forever of persons who fail to meet technical
requirements to confirm an accurate registration. [¶]
. . . [¶] On this
record, there are strong arguments that Cluff should be treated as though
he fell outside the Three Strikes scheme.
In addition to the factors discussed above, we note that none of the
circumstances in aggravation listed in the California Rules of Court appear to
apply here . . . , while some circumstances in mitigation may
apply. . . .†(
Cluff is easily
distinguished. While Cluff had a stable
residence, was regularly employed and complied with the requirement that he
register upon changing his residence (Cluff, supra, 87
Cal.App.4th at pp. 994–1004), Toca did not reregister after 2006 and being convicted of
failing to register. Thus, there was
evidence that Toca intentionally avoided registering as a sex offender so that
the police could not find him. For that
reason, his violation of section 290.012 was not a technical transgression on
par with Cluff’s transgression.
DISPOSITION
Count 1 is reversed. We affirm the conviction on count 2 and the
sentence for 25 years to life. We also
affirm the conviction on count 3 and the concurrent jail sentence of six
months.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
Acting P. J.
DOI
TODD
_______________________________,
J.
CHAVEZ
name="_ftn1" title="">[1]
statutory references are to the Penal Code unless otherwise indicated.
is no direct evidence of how long Toca was incarcerated. The probation officer’s report states that
the length of incarceration is unknown.
But at the sentencing hearing, the prosecutor stated: “He got 20 years for what he did to that
young lady back in Vegas. So if you take
that 20 years, that drops him right into 2000, 2001.†We have no cause to doubt the prosecutor’s
statements. On appeal, Toca does not
suggest that he served less than 20 years.
