P. v. Merritt



















Filed 1/11/13 P.
v. Merritt 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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)

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>

THE PEOPLE, Plaintiff and Respondent, v. GREGORY MARCUS MERRITT, Defendant and Appellant.

C063941 (Super. Ct. No. 09F04235)

Defendant
Gregory Marcus Merritt, a sex offender who was required to register any change
in his residence address with a local law enforcement agency within five
working days of making the change (Pen. Code, § 290, subd. (b)),href="#_ftn1" name="_ftnref1" title="">[1] was convicted by a jury of failure to so register (§§ 290.013,
subd. (a), 290.018, subd. (b)). He was
sentenced to five years in state prison.href="#_ftn2" name="_ftnref2" title="">[2]

On
appeal, defendant contends the trial court erred when it (1) denied his request
for a mistake of fact instruction, the mistake being that his moving from the
residence for which he had last registered into an automobile in a parking lot
across an alley from that residence was not a change of address; and (2) failed
to instruct the jury with the definition of “residence” as provided in section
290.011, subdivision (g). We conclude
that under the circumstances of this case defendant was not entitled to a
mistake of fact defense, and that any error in instructing the jury on the
definition of residence was harmless.

FACTS

Defendant
is a convicted sex offender who is required to register the address of his
residence with a local police agency.
Defendant last registered his address on August 20, 2008, as 477 1/2 El
Camino Avenue, Sacramento (hereafter the El Camino residence). The El Camino residence is located on
Sacramento County Assessors parcel No. 32.
Parcel No. 32 is a rectangular piece of land, fronting on El Camino Ave
and extending back to an alley. Parcel
No. 32 has two structures on it -- the primary structure which fronts on El
Camino Avenue and contains spaces for small businesses, each bearing a separate
address, and the El Camino residence that backs up to an alley, across from
which is a parking lot. The parking lot
is on parcel No. 1.

On
May 28, 2009, Detective Kevin Patton went to the El Camino residence to
determine if defendant was living there.
He was not, instead the El Camino residence was now occupied by Placido
Martinez and his family.

Placido
Martinez, a security supervisor, testified that he and his family moved into
the El Camino residence on May 1, 2009.
Martinez’s only contact with defendant was when he saw and spoke to him
at a nearby Kentucky Fried Chicken restaurant.
Martinez had never seen defendant around Martinez’s residence or
sleeping in a vehicle in the parking lot.


Phu
Nguyen testified that starting in August 2008, he was working six days a week,
from 8:30 a.m. to 7:00 p.m., at a barbershop located on parcel No. 32. Nguyen was acquainted with defendant and knew
he had lived at the El Camino residence.
Nguyen also knew defendant had moved from that residence on April 9,
2009. In early May 2009, Nguyen saw
defendant picking up mail from defendant’s mailbox, which was located on front
of the main building on parcel No. 32.
Nguyen never saw defendant sleeping in an automobile in the parking lot
across the alley.

Defendant’s
girlfriend, Karen Smith, testified she and defendant moved into the El Camino
residence in July 2006 and were evicted
therefrom in April 2009. While Smith and
defendant were living at the El Camino residence, the owner of the property
asked them to keep the parking lot clear of debris that people would dump
there. The request, with which Smith and
defendant complied, led them to believe the parking lot was owned by the same
person who owned the El Camino residence.


After
Smith and defendant were evicted they were unsuccessful in their search for new
accommodations and began sleeping in Smith’s automobile, a small white older
Toyota which “barely” ran, in the parking lot across the alley from the El
Camino residence. Although Smith and
defendant were not always together and she slept in other locations, when she
wanted to find defendant she would look for him at the parking lot because that
was “where he knew to be” and “that was his address.”

Defendant
did not testify.

DISCUSSION

I

Defendant
requested the trial court to instruct the jury on the defense of mistake of
fact as provided by CALCRIM No. 3406.href="#_ftn3" name="_ftnref3" title="">[3] The purported mistake being
that defendant believed his moving from the El Camino residence and into
Smith’s automobile in the parking lot across the alley from that residence was
not a change in residence address. The
court denied the request because it determined there was insufficient evidence
of defendant’s mental state from which the jury could infer that he actually
believed the move was not a change in address.
We agree with the trial court.

CALCRIM
No. 3406 states in part: “The defendant
is not guilty of [insert crime] if (he/she) did not have the intent or mental
state required to commit the crime because (he/she) [reasonably] did not know a
fact or [reasonably and] mistakenly believed a fact.” Thus, at the very least, for a defendant to
be entitled to a mistake of fact defense instruction he or she must have
actually believed the fact that would negate the mental intent required.

Defendant
makes the following argument in support of his position that the record
contains substantial evidence that he mistakenly believed his move did not
require him to reregister his location:
“For purposes of . . . section 290.018, subdivision (b), offense, a
person can maintain a residence address by living in their vehicle ‘located by
a street address.’ ([] § 290.011, subd.
(g).) In this case, there was
substantial evidence [defendant] moved from living in a house at a registered
address to living in his vehicle behind the house and continued receiving mail
at that address and that the registration form given to [defendant] -- which
repeatedly referenced ‘residence address’
-- did not inform [defendant] that he had to register that move as a change of
address. Thus, there was substantial
evidence that [defendant] suffered from a mistake of fact and did not act
willfully to violate the law and, if there was a failure to reregister, it was
without actual knowledge the move to his car required reregistration as a
change of residence address.” (Original
italics.)

While
these asserted facts are evidence that defendant was actually living in Smith’s
automobile in the parking lot behind the El Camino residence, a fact strongly
contested at trial, they are not evidence of what defendant actually believed
his legal position was with regard to the move.
Of course, defendant may have held the belief he now asserts as the
basis for his purported mistake of fact.
The problem is that without evidence of defendant’s mental state, any
conclusion on what he believed is only speculation. And speculation is clearly not href="http://www.mcmillanlaw.com/">substantial evidence. (People
v. Mayfield (1997) 14 Cal.4th 668, 767 [substantial evidence is “‘evidence
which is reasonable, credible, and of solid value’”].) Consequently, the trial court did not err in
refusing to give a mistake of fact defense instruction.

II

Defendant
contends the trial court prejudicially erred when it instructed the jury that
“[a] residence is any factual place
of abode of some permanency” instead of instructing the jury per section
290.011, subdivision (g), which provides:
“ ‘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.”
(Original italics.)

According
to defendant, the prejudice caused by the definition given by the court was
that it “failed to adequately advise the jury of an element of the crime and
reduced the prosecution’s burden in proving that element that [defendant] had
changed residences or become a transient and willfully failed to
reregister.”

In
the circumstances of this case, any difference in the definitions of residence
was harmless beyond a reasonable doubt because, even if the jury believed
defendant had moved from the El Camino residence into Smith’s automobile, the
jury would have found, as shown by the following href="http://www.mcmillanlaw.com/">undisputed evidence, the move was a
change of address, the change being from having an address to having no
address. Defendant had been evicted from
the El Camino residence, meaning he had no further attachment to the residence,
including its 477 1/2 address. Smith’s
automobile was parked not just behind the El Camino residence, but it was in a
parking lot located on a different parcel of land (parcel No. 1) from that of
the El Camino residence (parcel No. 32).
The parking lot was located across an alley from the El Camino
residence, and it was used by visitors to the businesses on parcel No. 32.

Given
this record, we can confidently say beyond a reasonable doubt that if the jury
had been instructed on the definition of residence contained in section
290.011, subdivision (g), it would have concluded the move was a change in
address.

DISPOSITION

The
judgment is affirmed.





NICHOLSON , Acting P. J.



We
concur:







BUTZ , J.







HOCH , J.