People v. Soto

Full title: THE PEOPLE, Plaintiff and Respondent, v. FRANK BOBBY SOTO, Defendant and…

Court: California Court of Appeals, Fifth District

Date published: Nov 22, 2010

No. F057973 (Cal. Ct. App. Nov. 22, 2010)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County No. 07CM2106 Thomas DeSantos, Judge.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Poochigian, J.

INTRODUCTION

Appellant/defendant Frank Soto was required to register as a sex offender. He was released on parole in Kings County and initially complied with the registration requirement. He subsequently could not be found by his parole officer and was arrested three months later in Los Angeles. Defendant was charged and convicted of failing to comply with the sex offender notification requirements, because he failed to advise Kings County that he had moved from his registered address within five days of having moved. (Pen. Code¹, § 290, subd. (b) ²). Defendant admitted that he had two prior strike convictions and served five prior prison terms (§ 667.5, subd. (b)), and he was sentenced to the third strike term of 25 years to life plus five years for the prior prison term enhancements.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 As we will explain in section IV, post, the amended information erroneously alleged that defendant violated the amended version of section 290, subdivision (b), but defendant concedes the pleading error is harmless given the entirety of the record.

On appeal, defendant contends there is insufficient evidence of the corpus delicti of the offense such that his post-arrest statements should not have been admitted. He also raises issues of instructional error, and contends his conviction is not supported by substantial evidence. Finally, he argues his third strike term constitutes cruel and/or unusual punishment. We will affirm.

FACTS

In November 1999, defendant was convicted in the Superior Court of Kings County of violating section 288, subdivision (a), commission of a lewd or lascivious act on a child under the age of 14 years. As a result of that conviction, defendant was required to register as a sex offender.

In January 2006, defendant was released on parole and moved into Kings County. On January 5, 2006, defendant met with Parole Agent James Mitchell, who explained the conditions of his parole. Mitchell also explained the specific rules and regulations of the sex offender registration requirements, and reviewed the registration form with defendant. Defendant initialed each line on the form, which indicated that he read and understood each notification requirement, and signed the bottom of the form. Among the stated registration requirements on the form, defendant initialed the notifications which said that he had five days to notify Kings County if he moved out of the jurisdiction and that he had five working days to register as a transient with local law enforcement if he became homeless.

At that time, defendant complied with the sex offender registration requirements and declared on the form that his address was a residence on 13th Avenue near Hanford, located in an unincorporated area of Kings County. He had been placed at that residence by state parole because it was a “secured house for parolees” and “high risk sex offender[s].” At some point after January 2006, however, defendant was returned to prison on a parole violation.

In April 2007, defendant was again paroled to Kings County. On April 27, 2007, defendant met with Mitchell, who again reviewed his conditions of parole and the form which stated the same sex offender registration requirements. Defendant complied with the registration requirements, and declared on the form that he lived at the same residence on 13th Avenue in Hanford.

At 8:15 a.m. on May 10, 2007, Mitchell went to the 13th Avenue residence to conduct a routine “home call” on defendant, and make sure he was complying with his parole conditions and still living at the same registered address. There were five other parole registrants who lived at the residence, and defendant shared a bedroom with another parolee. Mitchell looked around for defendant and determined he was not at the residence. Mitchell asked defendant’s roommate about his whereabouts, and the roommate said he did not know where defendant was. Mitchell left a note on defendant’s bed and instructed him to contact Mitchell as soon as possible.

On May 11, 2007, Mitchell went back to the residence to look for defendant. Mitchell’s note was still on defendant’s bed and defendant was not there. Mitchell left another note on defendant’s bed, which instructed defendant to report to Mitchell’s office the next morning.

Mitchell testified that defendant failed to appear on May 12, 2007. On or about that date, Agent Cassina, Mitchell’s partner, went to the 13th Avenue residence to look for defendant. He was not there. Both of Mitchell’s notes were still on defendant’s bed, and they appeared to be in the same place. Cassina performed a cursory search of the room, which contained a closet and two dressers. Cassina testified there was “a lot of property in the room … that was in [defendant’s] area and his side.” The closet was full of clothes, but Cassina could not determine if the clothes belonged to defendant or his roommate. Cassina found a shoebox in the closet which contained documents, prison paperwork, and mail in defendant’s name.

Defendant never contacted Mitchell, he never informed any law enforcement agency in Kings County that he had moved from the 13th Avenue residence or he left Kings County, and he never registered at another address in the state. Mitchell testified that he suspected defendant had absconded as of May 10, 2007. Mitchell explained that when defendant registered as a sex offender, he was informed that he had five days to notify Kings County if he changed his address within that county or moved outside that jurisdiction. If he did not have a new address, he had five working days to notify Kings County if he became a transient.

On the afternoon of August 6, 2007, Los Angeles Police Officer Jason Crosswhite responded to an indecent exposure call in Sylmar and encountered defendant. Defendant was speaking on a cell phone. Crosswhite instructed him to put down the cell phone and place his hands behind his back. Defendant refused to cooperate, locked his arms in the air, and refused to move. Defendant then elbowed Crosswhite in the chest and ran away. Crosswhite and two other officers chased defendant. The officers caught up with defendant, and they had to use force to detain and take him into custody. Defendant was asked for his address and replied, “‘I ain’t got none.’” Defendant was later asked for his current residence, and defendant said he was a transient.

As we will discuss in issue IV, post, defendant was charged and convicted of failing to notify Kings County authorities that he had changed his registered address.

DISCUSSION

I. Corpus delicti

Defendant contends his admissions to the Los Angeles arresting officers—that he was a transient and did not have an address—were inadmissible in this case because the prosecution failed to prove the corpus delicti of the charged offense independent of his admissions. Defendant further contends the court had a sua sponte duty to instruct the jury with CALCRIM No. 359, that it could not convict him based on his admissions unless it found some independent evidence of the corpus delicti of the charged offense of failing to comply with the sex offender registration requirements.

“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself -- i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) The prosecution must establish the corpus delicti independent from the admissions of the defendant, thus assuring the accused does not admit to a crime which did not occur. (Id. at p. 1169.) “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense, ’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citations.]” (Id. at p. 1171.)

“The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a prima facie showing ‘“permitting the reasonable inference that a crime was committed.”’ [Citations.] The inference need not be ‘the only, or even the most compelling, one... [but need only be] a reasonable one....’” (People v. Jones (1998) 17 Cal.4th 279, 301-302, italics in original.) “In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (Alvarez, supra, 27 Cal.4th at p. 1171.)

As we will explain in section IV, post, defendant was tried and convicted of a violation of former section 290, subdivision (f)(1), that he was registered at the 13th Avenue residence in Kings County, he moved from that residence, and he failed to notify Kings County within five days that he had changed his residence either within or outside that jurisdiction. (Stats. 2006, ch. 337, § 11, effective 9/20/06 to 10/12/07, hereinafter referred to as former § 290, subd. (f)(1)(A)). As applicable to the instant case, the prosecution made a prima facie showing which permitted the reasonable inference that a crime was committed, independent of defendant’s admissions that he was a transient and did not have an address. It is undisputed that defendant was not at his declared residence in Kings County for at least three days in May 2007, he failed to respond to the notes left by his parole agent, he never re-registered at a different address in or out of Kings County, and he was arrested in Los Angeles three months later. Such evidence was more than sufficient to satisfy the prosecution’s slight burden under the corpus delicti rule that he had committed a crime by failing to comply with the sex offender registration requirements.

As for defendant’s instructional contentions, it is settled that “[w]henever an accused’s extrajudicial statements form part of the prosecution’s evidence, the cases have additionally required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.]” (Alvarez, supra, 27 Cal.4th at p. 1170, italics in original; People v. Najera (2008) 43 Cal.4th 1132, 1137.) “Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citation.] [¶] … [T]he modicum of necessary independent evidence of the corpus delicti, and thus the jury’s duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues. [Citations.] If, as a matter of law, this ‘slight or prima facie’ showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless.” (Alvarez, supra, 27 Cal.4th at p. 1181.)

As applicable to this case, the People concede the court had a sua sponte duty to instruct the jury with CALCRIM No. 359, which states:

“The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed.

“The other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.

“The identity of the person who committed the crime may be proved by the defendant’s statements alone.

“You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.” (Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 359.)

While the People concede the instructional error, they assert the error was harmless in light of the entirety of the record. We agree. It is not reasonably probable the jury would have reached a different result if CALCRIM No. 359 had been given. There was more than sufficient independent evidence to satisfy the prosecution’s slight burden of producing some evidence that defendant had left Kings County and failed to notify that county that he had changed his address or left the jurisdiction. The independent evidence is more than adequate to establish, as a matter of law, that the failure to give the instruction was harmless. (Alvarez, supra, 27 Cal.4th at p. 1181.) In addition, the jury received an instruction on the corpus delicti rule, CALCRIM No. 358, which states:

“You have heard evidence that the defendant made an oral statement before the trial. You must decide whether the defendant made any such statement, in whole or in part. If you decide that the defendant made such statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give the statement. Consider with caution any statement made by defendant tending to show his guilt unless the statement was written or otherwise.”

The jury was thus instructed to view defendant’s out-of-court statements with caution and consider them in light of the other evidence.

The court’s failure to give the corpus delicti instruction was not prejudicial based on the entirety of the record and instructions.

II. Failure to instruct with CALCRIM No. 224

Defendant contends the court should have instructed the jury with CALCRIM No. 224, as to the consideration of circumstantial evidence. The People concede the court should have given CALCRIM No. 224, but assert the error was harmless in light of the other instructions given.

“The trial court is required to instruct the jury ‘“‘on the general principles of law relevant to the issues raised by the evidence.’”’ [Citation.] A trial court must instruct the jury regarding how to evaluate circumstantial evidence ‘“sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt. [Citations.]”’ [Citation.]” (People v. Contreras (2010) 184 Cal.App.4th 587, 591 (Contreras).)

In the instant case, the court instructed the jury with CALCRIM No. 220, as to reasonable doubt, and then gave CALCRIM No. 223 on direct or circumstantial evidence:

“Facts may be proved by direct or circumstantial evidence, or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse that testimony is direct evidence that it was raining.

“Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question.

“For example, if a witness testifies that they saw someone come inside wearing a rain coat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.

“Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge including intent and mental state, and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”

The court then read CALCRIM NO. 225 to the jury, as to circumstantial evidence and mental state:

“The People must prove not only that the defendant did the acts charged, but also that he acted with a particular mental state. The instruction for the crime explains the mental state required. A mental state may be proved by circumstantial evidence.

“Before you may rely on circumstantial evidence to conclude that facts necessary to find the defendant guilty had been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

“Also, before you may rely on circumstantial evidence to conclude that the defendant had required mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had required mental state.

“If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions supports a finding that the defendant did have the required mental state, and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions, and reject any that are unreasonable.”

The issue presented in this case is based on the court’s failure to instruct the jury with CALCRIM No. 224, another circumstantial evidence instruction, which states:

“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.” (Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 224.)

Defendant argues the court’s failure to give CALCRIM No. 224 was prejudicial error because the prosecution completely relied on circumstantial evidence to prove defendant moved from the 13th Avenue residence and failed to advise Kings County that he had changed his address. CALCRIM No. 224 “describes the manner in which the jury is to consider circumstantial evidence that the prosecution offers to prove facts necessary to find a defendant guilty, ” and CALCRIM No. 225 “describes the manner in which the jury is to consider circumstantial evidence that the prosecution offers to prove a defendant’s intent or mental state.” (Contreras, supra, 184 Cal.App.4th 587, 591, 592.) “‘CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive. [Citation.]’ [Citation.] CALCRIM No. 224 ‘is the proper instruction to give unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state.’ [Citations.]” (Contreras, supra, 184 Cal.App.4th at p. 592.) Thus, “CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the defendant’s specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.’ [Citations.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171-1172.)

In People v. Rogers (2006) 39 Cal.4th 826 (Rogers), the trial court in a murder case failed to instruct the jury with CALCRIM No. 2.01 (the predecessor to CALCRIM No. 224), but it gave CALJIC No. 2.02 (the predecessor to CALCRIM No. 225).³ Rogers held the court should have given the more inclusive instruction since the prosecution relied on circumstantial evidence to prove both the killer’s identity and mental state. However, Rogers held the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836, because the circumstantial evidence of the defendant’s identity of the killer was very strong. (Rogers, supra, 39 Cal.4th at pp. 885-886.) Rogers further held that the court’s failure to give the more inclusive circumstantial evidence instruction, which included language about reasonable doubt, did not rise to the level of federal constitutional error since the court separately instructed the jury on reasonable doubt. (Id. at p. 886.) “We doubt the common law right to a circumstantial evidence instruction rises to the level of a liberty interest protected by the due process clause. [Citation.]” (Id. at pp. 886-887.)

3 “CALCRIM Nos. 224 and 225 are substantially the same as their predecessors, CALJIC Nos. 2.01 and 2.02. In each pair, the lower numbered instruction informs the jury as to how to consider circumstantial evidence to find the defendant guilty, and the higher numbered instruction informs the jury on how to consider circumstantial evidence when only the element of mental state or intent has been proven by such evidence. Authorities discussing these CALJIC instructions are therefore instructive with regard to the analogous CALCRIM instructions.” (People v. Samaniego, supra, 172 Cal.App.4th 1148, 1171, fn. 12.)

In this case, the People concede the more inclusive instruction of CALCRIM No. 224 should have been given since prosecution completely relied on circumstantial evidence to prove defendant left the 13th Avenue residence and intentionally and willfully failed to comply with the statutory requirement of notifying Kings County within five days of his departure. As in Rogers, however, the error was harmless since there was no question as to the identity of the perpetrator in this case. The jury received both CALCRIM Nos. 223 and 225, CALCRIM No. 225 addressed the more specific question about defendant’s intent, and the jury also received the reasonable doubt instruction. While CALCRIM No. 225 focused on mental states, it also contained general language that both forms of evidence were acceptable to prove a fact, including intent and mental state. The jury thus was cautioned that it could not rely on a fact proved by circumstantial evidence unless the People proved that fact beyond a reasonable doubt, and that it must accept only reasonable conclusions from the circumstantial evidence. Moreover, the instructions on reasonable doubt informed the jury that the evidence must prove defendant guilty beyond a reasonable doubt, and unless that is done he is entitled to an acquittal. The jury was sufficiently informed regarding how to evaluate circumstantial evidence.

III. Evidence about defendant’s parole status and arrest

Defendant next contends that his conviction must be reversed because prosecution witnesses testified about prejudicial character evidence regarding his prior conviction and parole status. Defendant acknowledges defense counsel did not object to this evidence, but argues the evidence was so prejudicial that his due process rights were violated.

A. Background

Defendant’s evidentiary arguments are based on the following evidence. As explained ante, Parole Agent Mitchell testified about the registration requirements in section 290, and that he supervised defendant as a paroled sex offender. Mitchell testified he explained those requirements to defendant, defendant signed and initialed the appropriate forms, and he registered at a residence on 13th Avenue. Mitchell testified defendant was returned to prison on a parole violation, he registered after he was released from prison in April 2007, and he again registered at the same residence on 13th Avenue.

“[The prosecutor]. Can you tell us the nature of this particular residence?

“A. The reason we have the resident there is because it, it’s in accordance with Jessica’s Law, where a [section] 290 registrant that considered a high risk sex offender will not be living within 2, 000—I’m sorry, within half a mile of a school, or a park, or a park where children congregate.

“Q. So this particular household located on... 13th, is that kind of like a halfway house for sex offenders?

“A. What it is, it’s a home for where we house our sex offenders, and at any time they get self sufficient they can move out of that residence into their own residence, as long as they’re in accordance with Jessica’s Law.” (Italics added)

Defendant did not object to the prosecution’s question or Agent Mitchell’s testimony.

Also as set forth ante, Officer Crosswhite testified that he arrested defendant in an unincorporated area of Los Angeles County on August 6, 2007.

“[The prosecutor]. Specifically, at about 4:30 in the afternoon, was there an occasion that you got called out on an incident?

“A. Yes. I responded to a call on that date at the time of and I believe it was an indecent exposure was the initial call.” (Italics added.)

Defendant did not object to either the prosecutor’s question or Crosswhite’s testimony.

After the parties rested, the court discussed the jury instructions outside the jury’s presence. In the course of that discussion, the court stated that defense counsel, Mr. Gupton, had informed the court about his tactical decision not to object to Officer Crosswhite’s testimony about the indecent exposure dispatch.

“The COURT: [D]uring the trial … Officer Crosswhite, testified as to the original stop in Los Angeles, in the greater Los Angeles area, and he made some mention of a service call for indecent exposure, and went on to set up the scene so to speak of the arrest of [defendant] in this matter. [¶ ] Rather than draw any attention to that Mr. Gupton, I believe you’ve indicated that by asking for a limiting instruction, or specific disregard instruction to the jury that that would bring attention to what you consider an insignificant piece of testimony.

“MR. GUPTON: That’s correct, your Honor. I consider this as a tactical decision. I did not object at the time, and I’m not requesting a limiting instruction. Again, as a tactical decision it’s something that I will deal with, albeit briefly, intend to during my closing argument, but again as a tactical decision, I believe that’s the best way to handle it in terms of the defendant’s interests.”

In his closing argument, defense counsel addressed Crosswhite’s testimony about the indecent exposure dispatch:

“The testimony that we heard from [Crosswhite] was that he was investigating a report of indecent exposure, okay? [¶ ] [Defendant] was contacted during the course of that investigation. That’s all we know about that situation, other than the fact that he was eventually arrested. [¶ ] There’s no evidence before you that he was in any way involved in any incident of indecent exposure. There’s no evidence before you that he was a suspect, that he was arrested, or he did any such act.”

B. Analysis

Defendant does not assert any issues of prosecutorial misconduct based on the prosecutor’s questions which elicited the testimony from Agent Mitchell and Officer Crosswhite, respectively, about the nature of the 13th Avenue residence and the indecent exposure dispatch. Defendant does not assert that his defense counsel was prejudicially ineffective for failing to object to the questions or answers. He does not challenge counsel’s stated tactical reasons for not objecting to Crosswhite’s testimony or asking for a limiting instruction. Instead, defendant argues the testimony from Mitchell and Crosswhite was so prejudicial that it violated his due process rights regardless of defense counsel’s failure to object.

As the People correctly note, “[i]t is ‘the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’ [Citations.]” (Evid. Code, § 353; People v. Raley (1992) 2 Cal.4th 870, 892.) “In accordance with [Evidence Code section 353], we have consistently held that the ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable. [Citations.]” (People v. Seijas (2005) 36 Cal.4th 291, 302.)

“A century ago, long before the Evidence Code existed, we explained the need for a specific objection. ‘To require this is simply a matter of fairness and justice, in order that cases may be tried on their merits. Had attention been called directly in the court below to the particular objection which it is now claimed the general objection of appellant presented, that court would have had a concrete legal proposition to pass on, and counsel for plaintiff would have been advised directly what the particular complaint against the question was, and, if he deemed it tenable, could have withdrawn the inquiry or reframed his question to obviate the particular objection. Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application that under an omnivagant objection to a question they can apply with legal accuracy some particular principle of law which the objection does not specifically present.’ [Citations.]

“The objection requirement is necessary in criminal cases because a ‘contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.”’ [Citation.] ‘The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’ [Citation.]” (People v. Partida (2005) 37 Cal.4th 428, 433 (Partida).)

“A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.” (Partida, supra, 37 Cal.4th at p. 435.)

Defendant acknowledges this general rule, but argues that the failure to object may be excused when evidence creates “‘incurable prejudice.’” Defendant’s argument is based on the following authority:

“‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice. [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 565, italics added; People v. Williams (1997) 16 Cal.4th 153, 211.)

However, “the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]” (Partida, supra, 37 Cal.4th at p. 439, italics in original.) “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) “Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]” (Partida, supra, 37 Cal.4th at p. 439.)

In applying these principles to the instant case, we cannot say that the testimony of Mitchell and Crosswhite created incurable prejudice and violated defendant’s due process rights. While Mitchell testified about the type of residence where defendant was living, the People correctly note that such testimony was not prejudicial in light of the fact that defendant was being tried for failing to comply with the sex offender registration requirements in violation of section 290, a statute which serves “an important and vital public purpose by compelling registration of many serious and violent sex offenders who require continued public surveillance.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1208.) In any prosecution for violating section 290, “unless the jurors are informed that the defendant’s duty to register derives from his status as a sex offender, they will be unaware of the public policy underlying the registration statute: assuring that persons convicted of sex offenses are readily available for police surveillance at all times because the Legislature has deemed them likely to commit similar offenses in the future. [Citation.]” (People v. Cajina (2005) 127 Cal.App.4th 929, 934.)

Moreover, while Crosswhite’s testimony about the indecent exposure call might have “incline[d] the jury to view defendant as a kind of freak, a pariah, a ‘pervert’” (People v. Earle (2009) 172 Cal.App.4th 372, 401), the jury was already aware that defendant had been convicted and served time in prison for the more serious offense of committing a lewd and lascivious act on a child, which required him to register as a sex offender. Defendant stipulated to the fact of his prior conviction and does not challenge defense counsel’s decision to enter into that stipulation.

In addition, there were numerous references to defendant’s prior conviction and parole status during the course of trial, all of which were relevant and admissible, and defendant does not now contend any of this such evidence violated his due process rights. In his opening statement, the prosecutor stated that defendant was convicted of “what is commonly known as child molestation. Because he was convicted, he is required by law to register as a sex offender, so that the law enforcement agencies can keep a tab on where he is, exactly his location, and where his address is.” The prosecutor stated the evidence would show that defendant “left the halfway house” in Kings County and failed to register at a different address.

The prosecution witnesses included Detective Robert Flores, who testified that he was in charge of the sex offender registration program, and he monitored convicted sex offenders who were living or residing in Kings County. Flores testified defendant was a convicted sex offender who was required to register in Kings County. In the course of Agent Mitchell’s testimony, he stated that defendant initially registered in Kings County in January 2006, but defendant was later returned to prison on a parole violation, and he again registered after he was released from prison in April 2007. Mitchell further testified that defendant lived at the 13th Avenue residence with six other parolees/registrants, and Mitchell performed the “home call” to make sure defendant and the others did not have any contraband and were complying with their parole conditions. Parole Agent Cassina testified about his follow-up visit to the house, his cursory search of defendant’s bedroom, and his discovery of some of defendant’s “prison mail” and “paperwork from prison” in that room.

Department of Justice Agent Donald Newman testified that he was on the “sexual offender apprehension team” which tracked “sex offenders.” Newman testified that there were several databases used to track sexual predators, including the “Violent Crime Information Network” (VCIN). Newman explained that VCIN tracks “violent offenders, which includes sex offenders.” Newman testified that according to the VCIN database, defendant registered in Kings County in January and April 2007, he never registered with any law enforcement agency after April 2007, and that defendant was in state prison in January 2008.

We find the jury was well-aware of the nature of defendant’s prior conviction and his parole status, and the testimony of Mitchell and Crosswhite did not violate defendant’s due process rights or render his trial fundamentally unfair in light of the entirety of the record.

IV. The nature of the charged offense

Defendant contends there is insufficient evidence to support his conviction for violating section 290 because there is no evidence he had moved from Kings County and residing in another county for five days, which would have triggered his duty to advise Kings County of his change of address.

While defendant’s substantial evidence challenge appears relatively straightforward, we must first address an issue presented by the pleadings in this case—exactly what statute was defendant charged with violating. As we will explain, section 290 was substantially amended after the complaint was filed in this case but prior to his preliminary hearing. Defendant was initially charged in the complaint and original information with violating the version of section 290 which was in effect when he committed the instant offense. However, the prosecutor mistakenly amended the information to charge defendant with violating the version of section 290 which went into effect after he allegedly committed the instant offense.

We will review the two versions of section 290 as they existed before and after the October 13, 2007, amendments (Stats. 2007, ch. 579, § 7 (SB 172)), which “reorganize[d] and renumber[ed]” the relevant statutory provisions, made “conforming technical changes in related provisions of law, ” but otherwise continued to mandate virtually the same registration requirements. (SB 172, Legislative Analysis.) We will also review the pleadings, the preliminary hearing, the jury instructions, and the parties’ closing arguments to determine the exact nature of the charge. In the following section V, we will then determine whether defendant’s conviction is supported by substantial evidence.

A. The 2006-2007 version of section 290

As we will explain, defendant was alleged to have violated section 290 in May 2007. In a prosecution under section 290, a defendant must be charged with the version of the statute in effect at the time he committed the offense. (People v. Wallace (2009) 176 Cal.App.4th 1088, 1091, fn. 1 (Wallace).)

We thus begin with the version of section 290 which was in effect from September 20, 2006, to October 12, 2007, which includes the time when defendant committed the instant offense. At that time, section 290, subdivision (a)(1)(A) required certain sex offenders to register with the appropriate law enforcement authorities where they resided, within five days of “coming into, or changing his or her residence within” a city and/or county. (Stats. 2006, ch. 337, § 11, hereinafter referred to as former § 290, subd. (a)(1)(A).)

Also at that time, the following version of section 290, subdivision (f)(1)(A) was in effect:

“Any person who was last registered at a residence address pursuant to this section who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, 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, and any plans he or she has to return to California.” (Stats. 2006, ch. 337, § 11, hereinafter referred to as former § 290, subd. (f)(1)(A), italics added.)

Taken together, former section 290, subdivision (a)(1)(A) required certain sex offenders to register with law enforcement authorities in the city or county where they were residing, and former section 290, subdivision (f)(1)(A) required those offenders, “when they move, to inform the law enforcement agency where they last registered of their new address or location.” (People v. Britt (2004) 32 Cal.4th 944, 951, fn. omitted (Britt).) “These are separate, albeit closely related, requirements. Sex offenders registered in one county who move to another county within California without notifying any law enforcement agency violate both requirements: [former] section 290, subdivision (a)(1)(A), by not registering in the new county; and [former] section 290, subdivision (f)(1), by not informing authorities in the old county of the new address.” (Britt, supra, 32 Cal.4th at p. 951.)

B. The complaint

On June 20, 2007, a complaint was filed against defendant in Kings County Superior Court. The complaint charged defendant with violating former section 290, subdivision (f)(1) on or about May 17, 2007, and alleged he was a person required to file a change of address, residence, and location, and he “did willfully and unlawfully violate the provision of … section 290 requiring a person to inform the last registering agency in writing within 5 working days of a change of address and location.” (Italics added.)

Defendant was still at large when the original complaint was filed. Defendant was arrested in Los Angeles on August 6, 2007.

C. The 2007 amendments to section 290

In the meantime, effective October 13, 2007, the previous version of section 290 was repealed and re-enacted as the “Sexual Offender Registration Act.” (§ 290, subd. (a); Stats. 2007, ch. 579, § 7.) This version of section 290 is still in effect.

Section 290, subdivision (b) now states the provisions of former section 290, subdivision (a)(1)(A), that as to certain sex offenders, “for the rest of his or her life while residing in California …, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department …, within five working days of coming into, or changing his or her residence within, any city, county, or city and county … in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.” (§ 290, subd. (b), italics added.)

The 2007 amendments deleted former section 290, subdivision (f)(1), and renumbered that provision as section 290.013. (Stats. 2007, ch. 579, § 21; Wallace, supra, 176 Cal.App.4th at p. 1095 & fn. 4.) Section 290.013, subdivision (a) now states:

“Any person who was last registered at a residence address pursuant to the 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 inside or outside the state, 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, and any plans he or she has to return to California.” (Italics added.)

D. The preliminary hearing

On August 19, 2008, the original complaint was refiled against defendant without any changes, and it again alleged a violation of former section 290, subdivision (f)(1).

On the same day, the preliminary hearing was held. At the conclusion of the evidence, the prosecutor advised the court that section 290 had been amended since the complaint was originally filed. The prosecutor explained defendant had been charged under the version of section 290 that was in effect when he committed the offense of failing to register in May 2007. The prosecutor further stated that section 290, subdivision (b) now defined the offense of failing to register, but the prosecutor was not sure if the amendment was retroactive.⁴ The prosecutor argued that defendant should be held to answer because the evidence showed that he left the 13th Avenue residence in May 2007, and he failed to report his change of address to Kings County authorities. The prosecutor argued that defendant failed “to notify Kings County authorities he had moved from Kings County to another county, ” and defendant was required to advise Kings County within five days that he had moved out of the jurisdiction.

4 As we will explain post, the prosecutor mistakenly believed that former section 290, subdivision (f)(1) had been supplanted by the amended section 290, subdivision (b).

Defense counsel agreed with the prosecutor’s interpretation of former section 290, subdivision (f)(1), and that a registrant had to notify the jurisdiction where he was already registered about his change of address. However, defense counsel argued there was no evidence that defendant had moved from the 13th Avenue residence, just based on his failure to respond to the parole agent’s notes and his arrest in Los Angeles three months later.

The court held defendant to answer on the refiled complaint, which charged defendant with a violation of former section 290, subdivision (f)(1). The prosecutor asked if he needed to amend the complaint. The court replied there was no need to amend, but found the evidence was sufficient under current version of section 290, subdivision (b), based on the prosecutor’s earlier statement that subdivision (b) restated the provisions of former subdivision (f)(1).

On September 2, 2008, an information was filed which charged defendant with the identical offense and allegations as in the original complaint—a violation of former section 290, subdivision (f)(1), on May 17, 2007, based on his alleged failure to notify Kings County authorities within five days that he had moved from that jurisdiction.

E. The amended information

On May 27, 2009, an amended information was filed against defendant, and it contained different allegations than the prior complaint and information. It charged defendant with violating the current version of “section 290(b)” on or about May 17, 2007, and further alleged:

“[Defendant] being a person required to file a change of address, residence and location, did willfully and unlawfully violate the provision of Penal Code section 290 requiring a person to inform the last registering agency in writing within 5 working days of a change of address and location.” (Italics added.)

While the amended information alleged a violation of section 290, subdivision (b)—which addresses a person’s failure to register—it still contained the pleading allegations that described a violation of former section 290, subdivision (f)(1)(A), that defendant failed notify Kings County authorities that he had left the jurisdiction.

F. The pleading error

We now turn to the legal issue of whether defendant was properly charged in the amended information with violating the current version of section 290, subdivision (b).

It is settled, and the parties agree, that defendant should have been charged with violating the version of section 290 which was in effect when he was alleged to have committed the offense in this case. (Wallace, supra, 176 Cal.App.4th at p. 1091, fn. 1.) The complaint and information alleged that defendant violated section 290 on or about May 17, 2007. The parties agree defendant should have been charged with violating the relevant portion of former section 290 that was in effect from September 20, 2006, to October 12, 2007.

Thus, the complaint and original information correctly charged defendant with violating former section 290, subdivision (f)(1)(A), which was still in effect in May 2007. As we have explained, that subdivision required registrants, “when they move, to inform the law enforcement agency where they last registered of their new address or location.” (Britt, supra, 32 Cal.4th at p. 951.)

The amended information incorrectly alleged that defendant violated the current version of section 290, subdivision (b), which defines a completely different offense than what was alleged in the complaint. Section 290, subdivision (a) is similar to former section 290, subdivision (a)(1)(A), and requires a registrant to register with law enforcement authorities within five working days of entering or changing his or her residence in a jurisdiction.

The amended information should have charged defendant with violating former section 290, subdivision (f)(1)(A), since that section was in effect when defendant allegedly committed the offense. In the alternative, the amended information could have charged defendant with violating current section 290.013, since that section uses the same language as former section 290, subdivision (f)(1)(A), and addresses a registrant’s failure to notify the jurisdiction when he or she has changed his residence from that jurisdiction.

Despite the pleading error, defendant does not and cannot make any claim of prejudice. While the amended information incorrectly alleged a violation of current section 290, subdivision (b), it continued to use the language of former section 290, subdivision (f)(1)(A) to describe the acts which constituted the criminal offense—that he failed to notify Kings County that he had moved from his registered address within that jurisdiction. This language was consistent with the prior complaint upon which defendant was held to answer, along with the original information, all of which alleged and described a violation of former section 290, subdivision (f)(1)(A), based on defendant’s failure to notify Kings County authorities that he no longer resided at his prior registered address.

In addition, the entirety of the record shows the pleading error was harmless because the parties operated with a common understanding of the charge against defendant—that he had registered in Kings County, he allegedly no longer resided in Kings County, and he failed to inform Kings County authorities of that information within five days in violation of former section 290, subdivision (f)(1)(A). (See, e.g., People v. Musovich (2006) 138 Cal.App.4th 983, 989 (Musovich).) The jury in this case was instructed with the following version of CALCRIM No. 1170, which referred to section 290, subdivision (b), but actually stated the elements of former section 290, subdivision (f)(1):

“The defendant is charged in Count I with failing to register as a sex offender in violation of Penal Code Section 290, [subdivision] b.

“To prove that the defendant is guilty of this crime, the People must prove that one, that the defendant was previously convicted of violating Penal Code section 288 [subdivision] a.…

“Two, the defendant resided in an unincorporated area of Kings County, California.

“Three, the defendant actually knew he had a duty to register as a sex offender under Penal Code Section 290 wherever he resided;

“And four, the defendant willfully failed to register as a sex offender with the sheriff of that county within five working days of coming into, or changing his residence within or from that county. Someone commits an act willfully when he or she does it willingly, or on purpose.”⁵ (Italics added.)

5 There were no pattern jury instructions for violating section 290 until this instruction was drafted in 2006. (See notes following CALCRIM No. 1170, p. 2; People v. Horn (1998) 68 Cal.App.4th 408, 414.)

In closing argument, the prosecutor argued that the first, second, and third elements of the offense were not in dispute, and the only question was whether defendant willfully failed to register within five days of changing his address from the 13th Avenue residence in Kings County. The prosecutor argued this fourth element was “a no brainer” because defendant was missing as of May 2007, when he failed to respond to or even move the notes left on his bed, and he was found three months later in Los Angeles when he claimed to be a transient. The prosecutor further argued:

“He never reported to Kings County that he was leaving, he never notified them by mail. He had not registered anything else. He had an obligation, and knew he had an obligation to notify Kings County Sheriff’s Office five—within five working days of him changing the address, whether it was outside of Kings County, or whether it was inside.”

The prosecutor continued:

“[I]f you don’t let them know 5 days before you move, you certainly do within 5 days after you have left. The defendant did not do either. And by the way, if you are transient, or you become homeless, that’s fine. We understand that happens. Not only do you have to notify Kings County within 5 days of you leaving, you now have to notify and register every 30 days where you may be if you’re homeless.”

Defense counsel used his closing argument to argue there was no evidence defendant moved from the 13th Avenue residence, because defendant’s personal belongings were still in his bedroom. Counsel further asserted there was no evidence of defendant’s whereabouts between May 2007, when the parole agents could not find him, and August 2007, when he was arrested in Los Angeles, and there was no evidence as to how long he was in a given location during that time. Defense counsel conceded defendant might have violated the terms of his parole by failing to inform his parole officer about his whereabouts, but he also argued there was no evidence defendant was in any one place for more than five days to have violated section 290.

In rebuttal, the prosecutor admitted there was no evidence about defendant’s whereabouts from May to August 2007, but that was “[b]ecause he didn’t register. He was missing in action for 3 months. Don’t tell me he was on a 3-month vacation, and had to be wrestled down by LAPD in LA. He skipped town. He changed his address. [¶ ] He is charged with leaving Kings County without notifying Kings County.” (Italics added.) “All I care is he left the halfway house in Kings County, didn’t notify them after it had been 5 days after he had left.”

We conclude that while defendant should have been charged with violating former section 290, subdivision (f)(1), the pleading error is necessarily harmless given the entirety of the record. The charging language in the information, together with the court’s instruction and the parties’ arguments, was “wholly adequate to enable [defendant] to meaningfully defend himself.” (Wallace, supra, 176 Cal.App.4th at p. 1098; Musovich, supra, 138 Cal.App.4th at pp. 988-989.)

V. Substantial evidence

We now turn to whether there is substantial evidence to support defendant’s conviction for violating former section 290, subdivision (f)(1), that he moved from his registered address on 13th Avenue in Kings County and failed to notify Kings County authorities of that move within five days. Defendant contends there is no evidence to support his convictions in violation of state and federal due process standards.

We begin with the well-recognized standards of review for a substantial evidence challenge. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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 beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).)

“The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (Rodriguez, supra, 20 Cal.4th at p. 11.) “Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.” (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) This court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Even if a contrary finding can be reconciled with the evidence, this court is bound to accept the jury’s finding if supported by the evidence.” (People v. Poslof (2005) 126 Cal.App.4th 92, 106.)

A. Section 290

The purpose of section 290 has not changed throughout the many revisions to its specific provisions—“‘to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.’ [Citations.]” (Britt, supra, 32 Cal.4th at p. 952.) “In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures. [Citation.]” (People v. Hofsheier, supra, 37 Cal.4th 1185, 1196.)

As we have explained, defendant was charged with and convicted of violating former section 290, subdivision (f)(1)(A), which required the jury to find that he changed his residence from 13th Avenue in Kings County and failed to notify Kings County authorities within five days of that change. (See, e.g., People v. Edgar (2002) 104 Cal.App.4th 210, 217.) A defendant’s failure to notify the former jurisdiction where he or she was registered of his or her change of address frustrates the purposes of the registration law because it prevents law enforcement authorities from learning of the defendant’s current residence. (Britt, supra, 32 Cal.4th at p. 952.) In order to effectuate this purpose, former section 290, subdivision (f)(1)(C) required the law enforcement agency of the former residence to notify the Department of Justice of a change of address, and the Department of Justice to forward that information to the agency of the new residence. (See, e.g., Britt, supra, 32 Cal.4th at p. 952.)⁶

6 This notification requirement has continued in section 290.013, which is the amended version of former section 290, subdivision (f)(1). (§ 290.013, subds. (c) & (d).)

In order to prove a violation of former section 290, subdivision (f)(1)(A), the prosecution must prove that within five days of changing his address from the 13th Avenue residence, defendant failed to notify Kings County “of the move, the new address or transient location, if known.…” (Former § 290, subd. (f)(1)(A).) However, the prosecution does not have the additional burden to prove defendant had established a new address or the location of that new address. (Wallace, supra, 176 Cal.App.4th at pp. 1096, 1097-1098.) Former section 290, subdivision (f)(1) applies “not just to registered sex offenders who have a new address, but also to those offenders who have moved or have a new transient location.” (Wallace, supra, 176 Cal.App.4th at p. 1096.)

“[T]he duty to notify under subdivision (f)(1) must arise upon a change of address, and common sense dictates that whenever a person moves out of the last registered address he or she will either have a new address, or a new ‘location, ’ of which to notify, within five days. The statutory language presumes that a change normally entails acquiring a new address when leaving the old one, and therefore the offender should normally be able to notify authorities of a new address within the five-day period. Nevertheless, if the registrant ‘changes’ the last registered address by moving out, and does not have a new address of which to provide notification, he or she may comply with [former section 290, ] subdivision (f)(1) by notifying of a new ‘location, ’ meaning, in this context, simply a place where the registrant can be found who has no address. This construction ensures that if a registered offender moves, it will be no longer than five days before the registrant must inform the police of his whereabouts. [Citation.]” (People v. Annin (2004) 117 Cal.App.4th 591, 603-605, first italics in original, second italics added, fns. omitted.)

“There can be no doubt that when an offender leaves the residence at which he has registered, he has made his residence different.” (Musovich, supra, 138 Cal.App.4th at p. 992.) The triggering of a sex offender’s five-day notice period is a question for the jury. (People v. Williams (2009) 171 Cal.App.4th 1667, 1673.)

Defendant contends that there is no evidence he moved from Kings County or that he had changed his residence to Los Angeles to trigger any type of violation of former section 290. He relies on People v. Balkin (2006) 145 Cal.App.4th 487 (Balkin), where the defendant’s conviction for failing to register as a sex offender under former section 290, subdivision (a)(1)(A) was reversed. The defendant in Balkin had been released on parole and advised of the requirement to register as a sex offender. He failed to register. In April 2005, he was arrested in Los Angeles and gave a local address as the place where he received mail. He was charged with failing to register within five days of entering Los Angeles County. (Id. at pp. 489-491.)

Balkin reversed defendant’s conviction and held there was no evidence regarding the location from which the defendant was released on parole, or “to establish when [the] defendant secured that address or moved into the city or county—it could have been one day prior to his arrest or more than five days.” (Balkin, supra, 145 Cal.App.4th at pp. 492-493.) Balkin further held there was insufficient evidence that the defendant “had been present within the City or County of Los Angeles for five working days prior to his arrest.” (Id. at p. 493.)

A similar evidentiary situation was addressed in Wallace, supra, 176 Cal.App.4th 1088, where the defendant complied with the registration requirement for several years. After 2006, however, he never registered again and disappeared. A real estate broker inspected defendant’s last registered address on six different occasions from November 2006 to May 2007, and defendant was not present at any time. In April 2007, law enforcement authorities determined that address was vacant. (Id. at pp. 1092-1094.)

Wallace affirmed defendant’s conviction for violating former section 290, subdivision (f)(1), because defendant failed to notify law enforcement authorities that he had vacated his last registered address. (Wallace, supra, 176 Cal.App.4th at p. 1095.) Wallace upheld defendant’s conviction under that subdivision and explained that the provision applied “not just to registered sex offenders who have a new address, but also to those offenders who have moved or have a new transient location, ” and the prosecution was not required to prove defendant had established a new address. (Id. at p. 1096.) However, Wallace reversed defendant’s conviction for violating former section 290, subdivision (a)(1)(A), for failing to register a new address within California. Wallace held there was no evidence of defendant’s whereabouts after his last registered address, and the court could not agree with the prosecution “that the lack of any evidence regarding [defendant’s] whereabouts in or about April 2007, even considered in light of [defendant’s] prior registration history in California, was sufficient to permit a reasonable inference that [defendant] remained in California during that time period, which the statute clearly requires. [Citations.]” (Id. at p. 1103, italics in orignial.)

B. Analysis

We find the reasonable inferences from the circumstantial evidence support defendant’s conviction in this case. When defendant was arrested in Los Angeles, he claimed to be a transient and said he did not have an address. Even if defendant had become a transient, he still would have been required to notify Kings County that he had left the 13th Avenue residence. (See, e.g., Annin, supra, 117 Cal.App.4th at p. 607.) Moreover, the prosecution did not have the burden to prove defendant had a new address under former section 290, subdivision (f)(1), but it still had to prove that he no longer resided at the 13th Avenue residence in Kings County and failed to notify authorities of that change within five days. (Wallace, supra, 176 Cal.App.4th at pp. 1096, 1101-1102.)

It is undisputed that defendant was not at the 13th Avenue residence on the three days the parole agents were there, he never responded to the notes to contact them, and he never registered at a different address anywhere in the state. There is no evidence that defendant made any attempts to notify the authorities of his whereabouts. It is also undisputed he was arrested in Los Angeles in August 2007, nearly three months later, and claimed he was a transient and did not have an address. At trial, defense counsel argued there was no evidence defendant left the 13th Avenue residence because the parole agent found some of his personal property in his assigned bedroom. However, defendant’s claims of transiency, and his lack of an address, would not be inconsistent with leaving his personal possessions behind in Kings County. We conclude defendant’s conviction is supported by substantial evidence.

VI. Cruel and/or unusual punishment

Defendant contends his third strike sentence of 30 years to life for failing to register as a sex offender constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions.

A. Background

According to the probation report, defendant had a lengthy criminal history, beginning in 1985 with the misdemeanor offenses of vehicle tampering (Veh. Code, § 10852) and giving a false identification to an officer (§ 148.9). In 1988, he was convicted of driving under the influence (Veh. Code, § 23152, subd. (b)) and sentenced to local time. He was also convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and sentenced to 16 months in state prison.

In July 1989, defendant was placed on probation for misdemeanor use of a needle or syringe (Bus. & Prof. Code, § 4151) and later violated probation. In December 1989, he was sentenced to three years in prison for transportation of a controlled substance (Health & Saf. Code, § 11352), and paroled in 1991. In 1992, he was sentenced to five years in prison for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and paroled in September 1994. In December 1994, he was sentenced to four years for transportation of a controlled substance, and paroled in 1996.

In March 1997, defendant was placed on probation for the misdemeanors of drunk driving, driving without a license, and using force or violence on a person. In 1997, he was sentenced to two years in prison for obstructing an officer (§ 148), and paroled in June 1998. In September 1998, he was sentenced to jail for misdemeanor petty theft (§ 484, subd. (a)), trespassing (§ 602(l)), and vandalism (§ 594, subd. (a)).

In December 1998, defendant was sentenced to eight years and four months in state prison after he was convicted of the two strikes in this case: commission of a lewd and lascivious act with a minor (§ 288, subd. (a)) and attempted lascivious activity (§ § 664/288, subd. (c)(1)). He was on parole for these offenses when he committed the instant offense. A no-bail warrant was issued and he was arrested in Los Angeles County.

At the sentencing hearing, defense counsel requested the court to dismiss one or both strikes because they were from a single proceeding and might have involved a single course of conduct. The prosecutor doubted the two strike offenses were based on the same course of conduct because defendant received consecutive sentences in the prior case. The prosecutor added that defendant was “crime free” until 2007 because he was in prison for most of that time.

The court denied defendant’s request to dismiss the prior strike convictions and found defendant fit within the intent of the Three Strikes law, based on his criminal record and the nature of the prior strikes. The court sentenced defendant to 25 years to life plus five years for the prior prison term enhancements.

B. Analysis

The purpose of the Three Strikes law is not to subject a criminal defendant to a life sentence merely on the basis of the latest offense. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of a disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593-595, 600.) Moreover, defendant is being punished not merely for the current offense but also because of his recidivism. (People v. Romero (2002) 99 Cal.App.4th 1418, 1432.) In evaluating the factors set forth in In re Lynch (1972) 8 Cal.3d 410, defendant’s sentence is not so disproportionate to the crime that it shocks the conscience, and it does not violate the state constitutional prohibition against cruel or unusual punishment. (See People v. Stone (1999) 75 Cal.App.4th 707, 715; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1517; People v. Cooper (1996) 43 Cal.App.4th 815, 825-828; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.)

In addition, defendant cannot demonstrate that his sentence violates the prohibition against cruel and unusual punishment contained in the federal Constitution. (Lockyer v. Andrade (2003) 538 U.S. 63, 66-67, 77 (Andrade); Ewing v. California (2003) 538 U.S. 11, 29-31 (Ewing); People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.) In Ewing, the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. (Ewing, supra, 538 U.S. at p. 23.) The court upheld a 25-year-to-life sentence under the Three Strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Id. at pp. 17-18, 29-31; see also Andrade, supra, 538 U.S. at pp. 66-68, 77 [two consecutive terms of 25 years to life under Three Strikes law for thefts of videotapes not grossly disproportionate].)

Defendant argues his “non-violent offense” of failing to register in violation of section 290 “meets the threshold of gross disproportionality” because his crime “did not hurt anyone in particular and did not otherwise threaten the life, liberty, or well-being of any other person.” These same arguments were addressed and rejected in People v. Meeks (2004) 123 Cal.App.4th 695 (Meeks), where the court held that a third strike sentence for failing to register as a sex offender did not violate either the state or federal prohibitions against cruel and/or unusual punishment. The defendant in that case moved three times over two years and later became a transient, and he failed to register his address changes or his transient status. Meeks held the defendant’s sentence was not grossly disproportionate based on his lengthy criminal history, the third strike indeterminate term was the same as the one imposed in Ewing, and it did not violate the Eighth Amendment. (Id. at pp. 708-709.) “[Defendant] has violated a law that is intended to avoid, or at least minimize, the danger to public safety posed by those who have been convicted of certain sexual offenses. It is at least as serious as theft of three golf clubs.” (Id. at p. 708.)

Meeks also rejected defendant’s argument that his sentence was unconstitutional under the Lynch analysis because his conviction for failing to register was “‘de minimis as felonies go.’” (Meeks, supra, 123 Cal.App.4th at p. 709.)

“[C]alifornia has recognized, and reasonably so, that sex offenders present a serious danger to society because of their tendency to repeat their sexual offenses. Sexual offenses not only invade the deepest privacies of a human being, and thereby may cause permanent emotional scarring, but they frequently result in serious physical harm to, or death of, the victim. Hence, ‘“it is necessary to provide for continued registration” to effectuate the statutory purpose of protecting the safety and general welfare of the public.’ [Citation.] Defendant’s willingness to ignore his duty to register and thus ignore society’s right to maintain some control over sexual offenders may seem ‘de minimis’ to him but does not seem so to a society seeking to protect itself from sexual predators. Defendant’s history of prior convictions for rape and attempted rape, approximately seven years apart, shows that he is one of those persons who law enforcement needs to have ‘readily available for police surveillance at all times.’ Here, defendant, without legal excuse or justification, admitted having failed to register after 1997 because he had other ‘priorities.’ We see nothing ‘de minimis’ either in the offenses in the abstract or in the circumstances attending their commission.” (Meeks, supra, 123 Cal.App.4th at pp. 709-710.)

We find Meeks is equally applicable to the defendant in this case. While defendant argues that his prior strikes occurred eight years before the instant offense and are necessarily remote, defendant was in prison for much of that time, he was still on parole when he could not be found at his registered address in Kings County, and his indeterminate term is not grossly disproportionate to his crime “in light of his long and serious criminal history.” (Meeks, supra, 123 Cal.App.4th at p. 708; see also People v. Poslof, supra, 126 Cal.App.4th at p. 109 [third strike term for failing to register as a sex offender does not violate state and federal prohibitions against cruel and/or unusual punishment given defendant’s lengthy criminal record as a recidivist]; People v. Nichols (2009) 176 Cal.App.4th 428, 436-437 [same].)

Defendant acknowledges Meeks but contends his situation is similar to that addressed in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony), where the court found a third strike sentence of 25 years to life imposed for the defendant’s failure to reregister as a sex offender violated both the federal and state constitutional prohibitions against cruel and/or unusual punishment. In doing so, Carmony emphasized that the defendant in that case had in fact registered, and his failure to reregister was a purely technical violation with no practical effect. (Id. at p. 1078.) “Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone.” (Id. at p. 1073.) “Because a 25-year recidivist sentence imposed solely for failure to provide duplicate information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions.” (Ibid.)

Defendant also relies on People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff) in support of his argument that his third strike sentence is unconstitutional because his conviction for failing to register poses no danger to society. In Cluff, defendant was sentenced to a third strike term after he was convicted of failing to comply with the sex offender registration requirements. Cluff held the trial court abused its discretion when it denied defendant’s motion to dismiss the prior strike convictions and imposed a third strike term. (Id. at p. 994.) Cluff held substantial evidence did not support the “critical inference” upon which the trial court relied in denying defendant’s motion to dismiss (id. at p. 997), i.e., that defendant failed to annually update his registration with the intent to “‘obfuscate’ his true residence.” (Id. at pp. 1002-1003.) Cluff characterized defendant’s offense as “the most technical violation of the section 290 registration requirement we have seen.” (Id. at p. 994.) Cluff noted defendant had been released from prison in 1990, he had properly registered a number of times over the next five years, and although he failed to update his registration after his birthdays in 1996 and 1997 (a requirement that became effective on January 1, 1995), he continued to reside at his last registered address, where the police were able to contact him in October 1997. (Id. at pp. 994-996.) Cluff concluded the trial court abused its discretion in failing to dismiss his prior strike convictions, and further held the imposition of a third strike indeterminate term for such conduct “appear[ed] disproportionate by any measure.” (Id. at p. 1004.)

In contrast to Carmony and Cluff, defendant herein did not remain at the same address while failing to perform a duplicative act of registration. Instead, he left his registered address in Kings County without complying with his mandatory duty to notify Kings County authorities of his whereabouts. Such an act was not a technical violation of the law that “served no stated or rational purpose.” (Carmony, supra, 127 Cal.App.4th at p. 1073.) Instead, his conduct “thwarted the fundamental purpose of the registration law, thereby leaving the public at risk.” (People v. Nichols, supra, 176 Cal.App.4th 428, 437.) Indeed, Carmony acknowledged there were different degrees of seriousness for failing to register as a sex offender: “[T]he offense committed by [the defendant in Meeks] was not the technical violation committed by defendant [in Carmony]. Meeks failed to register after changing his residence and therefore, unlike in the present case, law enforcement authorities did not have Meeks’s correct address and information.” (Carmony, supra, 127 Cal.App.4th at p. 1082, fn. 11.) As in Meeks, law enforcement authorities had no idea of defendant’s whereabouts for three months, and his failure to notify Kings County authorities of his change of address was not a mere technical violation of the statute.

Defendant also relies on Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875 (Duncan), where the Ninth Circuit held that a third strike term of 28 years to life for defendant’s failure to update his annual sex offender registration violated the Eighth Amendment. The Ninth Circuit held the sentence was grossly disproportionate for a “technical violation of a regulatory crime of omission, ” and defendant’s conduct did not demonstrate “any recidivist tendency toward violent crime or sex offenses.” (Id. at p. 891.) In reaching this holding, however, the court discussed Meeks and Carmony, and acknowledged the factual distinctions between the two cases: “[C]alifornia courts have recognized that the distinction between a conviction for failing to register after a change of address … and a conviction for failing to update registration annually … is critical.” (Id. at p. 885.) In Calloway v. White (N.D. Cal. 2009) 649 F.Supp.2d 1048, the court found Duncan was factually distinguishable and held defendant’s third strike term for failing to register did not violate Eighth Amendment, since defendant moved and failed to register his change of address, and authorities did not know his whereabouts for several months. (Id. at p. 1054.)

We thus conclude that defendant’s violation of section 290 was not the same type of “technical” violation addressed in Carmony, Cluff, and Duncan, defendant’s case is clearly within the parameters set by Ewing, Andrade, and Meeks, and the imposition of the indeterminate third strike term did not violate the constitutional prohibitions against cruel and/or unusual punishment.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Levy, Acting P.J., Hill, J.