IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S115438
v.
) Ct.App.
1/3
A093759
DONALD BARKER,
San
Mateo
County
Defendant and Appellant. )
Super.Ct.No.
SC47136
A registered sex offender must, within five working days of the offender’s
birthday, update his or her registration. (Pen. Code, § 290, subd. (a)(1)(D).)1
Willful failure to update one’s registration is a felony. (§ 290, subd. (g)(2),
hereafter section 290(g)(2).) The question presented by this case is whether the
willfulness element of the offense may be negated by just forgetting to register.
We conclude it may not be.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issue before us is narrow, the facts may be briefly stated.
Defendant is a registered sex offender. He was required to register because of two
1
Subsequent statutory references are to the Penal Code unless otherwise
indicated.
1
rape convictions; he was also convicted of attempted rape. His victims were 70,
73, and 84 years of age. He beat them so severely they were hospitalized; the
84-year-old was in critical condition for three days.
Defendant understood his birthday triggered an obligation to update his
registration. In 1996, 1997, and 1998, he signed and dated boxes on forms that
recited this obligation. Seven months before he committed this offense, defendant
again signed a sex offender registration form. On this form he initialed 15
statements advising him of his various registration obligations, including the
following statement: “I must, annually, within 5 working days of my birthday, go
to the law enforcement agency having jurisdiction over my location or place of
residence and update my registration, name, and vehicle registration.”
Nevertheless, in 2000, defendant failed, by his own admission, to update
his registration within five working days of his birthday, as required by section
290, former subdivision (a)(1)(C) (now subd. (a)(1)(D)). When he was arrested,
defendant acknowledged he had not only initialed the advisements regarding his
registration obligations, but also that he had read and remembered them. Asked
why he had failed to update his registration within the grace period, defendant
responded, “[B]ecause I’m in a program, I’m a house manager,” a job that “keeps
me busy all the time.” Pressed further, he said, “Well, you know what, I totally
forgot about it, I’m not going to make up no excuses.” Asked whether it was safe
to say his annual registration obligation had “[k]ind of just skipped [his] mind,”
defendant answered, “Yes.”
Defense counsel summed up his theory of the case in his argument to the
jury: “This is a man that forgot to do what the law requires him to do. Period.”
Counsel added: “He has a history of registration. . . . It’s in the evidence. Look at
it. This is a guy that does register. In this instance, he forgot.”
2
A jury convicted defendant of one count of violating section 290(g)(2),
based on his failure to update his registration within five working days of his
birthday (see § 290, former subd. (a)(1)(C); now subd. (a)(1)(D)). The jury
acquitted him of a second count of violating section 290(g)(2), which count
alleged he had failed to register within five days of changing his residence (§ 290,
subd. (a)(1)(A)).
After
denying
defendant’s motion for a new trial, the trial court dismissed
all but one of his 10 prior strike convictions in the interests of justice pursuant to
section 1385. It then sentenced appellant to state prison for a total term of nine
years as follows: the upper term of three years on count 1, doubled under the three
strikes law to six years, plus three consecutive one-year terms as to the prior
prison terms charged pursuant to section 667.5, subdivision (b). The trial court
observed that “even a technical violation of the registration requirements by a man
with defendant’s record is a very serious matter. . . . And with 10 prior strikes,
nine of which are for the sort of conduct which, in my view, should have gotten
him a life sentence when he did it, but the laws were not available to accomplish
that at that time, . . . a man with that record has to be very careful to comply with
all the laws and probably shouldn’t spit on the sidewalk.”
The Court of Appeal affirmed the judgment. “In sum, we hold that simply
forgetting is not a defense to a charge of violating section 290, and [defendant’s]
present claim that he lacked the necessary willfulness to commit the charged
offense because he forgot the annual registration updating requirement is
meritless. For that reason, the trial court did not err in instructing the jury that
‘forgetting to register by itself does not provide a defense to a charge of willful
failure to register.’ The instruction was a correct statement of the law; forgetting
the mandatory registration requirement of section 290 is simply not a legitimate
defense to the charge of willfully failing to register. Section 290 imposes a duty
3
upon all registrants, once they have received and understood advisement of the
duty to register, to remember and fulfill that legal obligation. We do not believe
the Legislature intended that a defendant could successfully evade this duty by
claiming that ‘I totally forgot about it.’ ”
We affirm the judgment of the Court of Appeal.
DISCUSSION
The statutory context in which this question arises was set forth by the
Court of Appeal. “As amended in 1996, 1997 and 1998, and in effect at the time
appellant registered in August 1999, section 290 provided in pertinent part that
every person convicted of an enumerated sex offense is required ‘for the rest of his
. . . life while residing in . . . California . . . to register . . . within five working days
of coming into, or changing his . . . residence or location within, any city, county,
or city and county . . . in which he . . . temporarily resides.’ (§ 290, former
subd. (a)(1)(A), as amended by Stats. 1996, ch. 909, § 2; Stats. 1997, ch. 821, § 3;
Stats. 1997, ch. 821, § 3.5; and Stats. 1998, ch. 930, § 1.1; see § 290, present
subd. (a)(1)(A).) In addition, ‘[b]eginning on his . . . first birthday following
registration or change of address, the person shall be required to register annually,
within five working days of his . . . birthday, to update his . . . registration . . . ,
including, verifying his . . . name and address, or temporary location, on a form as
may be required by the Department of Justice.’ (§ 290, former subd. (a)(1)(C), as
amended by Stats. 1997, ch. 821, § 3.5 and Stats. 1998, ch. 930, § 1.1; see § 290,
present subd. (a)(1)(D).) A person required to register because of a felony
conviction who ‘willfully violates’ the registration provisions ‘is guilty of a felony
and shall be punished by imprisonment in the state prison for 16 months, or two or
three years.’ (§ 290, former subd. (g)(2), as amended by Stats. 1994, ch. 867,
§ 2.7; see now § 290, present subd. (g)(2).)”
4
People v. Cox (2002) 94 Cal.App.4th 1371 (Cox) was the first case to
address the question whether just forgetting to register may negate the willfulness
requirement of section 290(g)(2). Cox held, “Once a person is made aware of the
registration responsibility, he or she may not defend on the basis that the
requirement simply ‘slipped’ his or her mind.” (Cox, at p. 1377.)
In reaching this conclusion, the Cox court found our decision in People v.
Garcia (2001) 25 Cal.4th 744 (Garcia) distinguishable. In Garcia, the defendant
contended the trial court prejudicially erred in failing to make clear in its
instructions to the jury that “a ‘willful’ failure to register requires a finding that [a
defendant] actually knew about his duty to register.” (Id. at p. 751.) The Attorney
General responded that “actual knowledge is not an element of the offense, and
that it was sufficient to find that the appropriate officers notified defendant of his
duty, as required by section 290.” (Ibid.)
We agreed with the defendant in Garcia. “In a case like this, involving a
failure to act, we believe section 290 requires the defendant to actually know of
the duty to act. Both today and under the version applicable to defendant, a sex
offender is guilty of a felony only if he ‘willfully violates’ the registration or
notification provisions of section 290. (§ 290, former subd. (g)(3), as amended by
Stats. 1994, ch. 867, § 2.7, p. 4393; § 290, present subd. (g)(3).) The word
‘willfully’ implies a ‘purpose or willingness’ to make the omission. (§ 7.)
Logically one cannot purposefully fail to perform an act without knowing what act
is required to be performed. As stated in People v. Honig (1996) 48 Cal.App.4th
289, 334, ‘the term “willfully” . . . imports a requirement that “the person knows
what he is doing.” [Citation.] Consistent with that requirement, and in
appropriate cases, knowledge has been held to be a concomitant of willfulness.
[Fn. omitted.]’ Accordingly, a violation of section 290 requires actual knowledge
of the duty to register. A jury may infer knowledge from notice, but notice alone
5
does not necessarily satisfy the willfulness requirement.” (Garcia, supra, 25
Cal.4th at p. 752.) We concluded, however, the potentially misleading instructions
given the jury with regard to the actual knowledge requirement were harmless
beyond a reasonable doubt because there was strong evidence the defendant did
actually know of the registration requirements. (Id. at p. 755.)
The
Cox court found Garcia distinguishable on the following grounds:
“We conclude there is a fundamental difference between Garcia’s claim that he
did not know he was required to register and appellant’s claim that he forgot to
register. Forgetting presupposes knowledge. Appellant, in our view, conceded
that he had actual knowledge of the registration requirement. Human beings store
in their brains a myriad of facts. At any given time the vast majority of those facts
are in storage waiting for some cue to bring them to conscious recognition. A
spouse may forget a wedding anniversary, a patient a medical appointment; such
lapses arise not from a lack of actual knowledge but a failure to respond to cues.
Persons keep calendars and appointment books, ask others to remind them of
duties and obligations and tie strings around their fingers all to insure that
important responsibilities are met. We conclude that within this context one
willfully fails to register when possessed of actual knowledge of the requirement
he or she forgets to do so.” (Cox, supra, 94 Cal.App.4th at p. 1376.)
“There are simply some things,” the Cox court observed, “that cannot be
forgotten.” (Cox, supra, 94 Cal.App.4th at p. 1377.) “We think it is inconceivable
the Legislature could have intended otherwise. Because the Legislature believed it
is essential the authorities know at all times the whereabouts of those who have
been convicted of committing sex offenses, it has created a demanding and
rigorous registration scheme. (See Wright v. Superior Court (1997) 15 Cal.4th
521, 527-528.)” (Cox, at p. 1376.)
6
As
the
Cox court observed, the registration scheme “places strict demands
not only on registrants but also on state and local agencies.” (Cox, supra,
94 Cal.App.4th at p. 1377.) “A person convicted of a qualifying crime is required
to register for the rest of his life. (§ 290, subd. (a)(1)(A).) A registrant with no
residence address is required to update his registration every 90 days. (§ 290,
subd. (a)(1)(B).) A registrant is required to register annually within five working
days of his birthday. (§ 290, subd. (a)(1)(C).) He must within five working days
register with the police agency of the location where he has taken up residence.
(§ 290, subd. (a)(1)(A).) He must within five working days notify the police
agency with which he last registered of any change of address. The agency must
within three days notify the Department of Justice, which in turn must notify the
jurisdiction to which the registrant is moving. (§ 290, subd. (f)(1).) A registrant
must notify within five days the police agency of the location in which he resides
of any change of name and it must so notify the Department of Justice. (§ 290,
subd. (f)(2).) [¶] Section 290, subdivisions (b)(1), (2), (c), requires all registrants
on release from confinement or to probation be informed of their registration
requirements. The official who explains the registration requirement must sign a
form required by the Department of Justice indicating the notification has been
given. The official is required to obtain the address where the registrant plans to
reside and report it to the Department of Justice and the police agency responsible
for that location. If the qualifying conviction was for a felony, the notification
required must be made not later than 45 days before the registrant’s release from
confinement. [¶] When changes have been made in registration requirements, the
Legislature has made provision for registrants to be so informed. The Legislature
has provided that the failure to receive such notification is a defense to a charged
failure to comply with the new requirement. (See, e.g., § 290, subd. (l)(1).)”
(Cox, at pp. 1376-1377.)
7
“In the face of such rigorous notification and registration requirements,” the
Cox court concluded, “it is unreasonable to believe . . . the Legislature intended
that a mere lapse of memory would excuse a failure to register. There are simply
some things that cannot be forgotten. To allow forgetfulness to excuse a failure to
register, would serve, in this context, as an incentive not to remember.” (Cox,
supra, 94 Cal.App.4th at p. 1377.)
In this case, the Court of Appeal was divided. The majority of the court
agreed with Cox. “[W]e are of the opinion that—as a matter of law—forgetting,
by itself, does not negate willfulness for purposes of a charge of violating the
registration updating requirement of section 290. . . . [¶] Section 290 imposes a
statutory obligation to register and reregister at certain times and under
enumerated conditions. As is the case with any legal obligation, inherent in that
statutory mandate is the duty not to forget to perform it. In contrast to the kind of
subjective ‘forgetfulness’ defense argued by appellant here, under the statutory
definition of ‘willfully’ found at section 7, subdivision 1, an omission to act would
not be ‘willful’ if objective circumstances beyond the defendant’s control
prevented him from acting. For example, a debilitating injury, illness or mental
infirmity might objectively prevent a defendant from registering in timely fashion,
thereby rendering ‘unwillful’ the defendant’s failure to register in compliance with
the strict time deadlines of section 290, and providing a defense whether or not the
defendant had also simply forgotten his obligation to register. [Fn. omitted.]
Mere forgetfulness, however, does not rise to the level of such an objective
circumstance preventing compliance with the statute. Whether the obligation has
simply slipped the individual’s mind is essentially irrelevant, because he was at all
times obliged not to let that happen. Without an objective circumstance
preventing compliance with the statutory obligation, a mere subjective failure to
remember to do so therefore remains ‘willful.’ [Citations.]”
8
The dissenting justice below objected: “The conclusion reached in Cox and
reaffirmed here—in effect, that a defendant is deemed to know whatever he once
knew—is inconsistent with both the language and the reasoning of Garcia. In
Garcia the Supreme Court concluded that ‘the court’s instructions on
“willfulness” should have required proof that, in addition to being formally
notified by the appropriate officers as required by section 290, in order to willfully
violate section 290 the defendant must actually know of his duty to register.’
(Garcia, supra, 25 Cal.4th at p. 754, italics added.) The court said ‘know,’ not
‘knew’ or ‘have known.’ Implicit in the court’s analysis is that the defendant must
have the necessary knowledge at the time he was required but failed to register—
not at some time in the past.”
The dissenting justice below read too much into the fact that we used the
present tense know in Garcia. In Garcia, we were not considering the question
presented here, and it is axiomatic that a decision does not stand for a proposition
not considered by the court (People v. Harris (1989) 47 Cal.3d 1047, 1071).
Moreover, as the majority below pointed out, “Forgetting something is
fundamentally different from not knowing that thing.”
The majority below explained: “Although under Garcia, knowledge is
required for willfulness, forgetting a fact does not negate the preexisting
knowledge thereof. To the contrary, forgetfulness requires the preexistence of
knowledge, since one cannot forget something unless one already knows it. . . .
The opposite of knowledge is ignorance. Because knowledge of the registration
requirement is a necessary element of the crime as defined by section 290,
subdivision (g), in this instance ignorance of the law must be a defense to a charge
of failing to register under section 290. However, forgetfulness is neither a loss of
knowledge, nor a form of ignorance. Although forgetfulness may temporarily or
momentarily negate the immediate awareness that one must undertake a given
9
action at a given time, it does not alter or affect the underlying knowledge that
such action is required. If someone forgets something he or she already knows, a
simple reminder is generally sufficient to restore the preexisting knowledge to
awareness. Thus, one may know that one has an obligation, even if one has a
temporary lapse in awareness thereof at the particular moment the obligation is
due to be performed. In contrast, if one does not know something in the first
instance, no amount of reminding will bring it to awareness until actual knowledge
of the fact is imparted.”
Contrary to the reading of it by the dissenting justice below, the legislative
history of section 290(g)(2) casts little light on the question whether the
willfulness element of the offense may be negated by just forgetting to register.
Section 290 is “regulatory in nature, intended to accomplish the
government’s objective by mandating certain affirmative acts.” (Wright v.
Superior Court, supra, 15 Cal.4th at p. 527, italics added (Wright).) In Morissette
v. United States (1952) 342 U.S. 246, 255-256, the high court explained that many
regulatory offenses “are not in the nature of positive aggressions or invasions, with
which the common law so often dealt, but are in the nature of neglect where the
law requires care, or inaction where it imposes a duty. Many violations of such
regulations result in no direct or immediate injury to person or property but merely
create the danger or probability of it which the law seeks to minimize. . . .
[L]egislation applicable to such offenses, as a matter of policy, does not specify
intent as a necessary element. The accused, if he does not will the violation,
usually is in a position to prevent it with no more care than society might
reasonably expect and no more exertion that it might reasonably extract from one
who has assumed his responsibilities. Also, penalties commonly are small, and
conviction does not grave damage to an offender’s reputation.”
10
Initially, failure to register as a sex offender was clearly a regulatory
offense within the Morissette definition. When section 290 was enacted in 1947,
violations were misdemeanors with no element of intent. (Stats. 1947, ch. 1124,
§ 1, p. 2563 [“Any person required to register under the provisions of this section
who shall violate any of the provisions thereof is guilty of a misdemeanor”].)
A decade after the enactment of section 290, the United States Supreme
Court considered a due process challenge to another registration ordinance―a Los
Angeles ordinance requiring the registration of felons―that did not require
willfulness for its violation. (Lambert v. California (1957) 355 U.S. 225, 227
(Lambert).) The high court held that “actual knowledge of the duty to register or
proof of the probability of such knowledge and subsequent failure to comply are
necessary before a conviction under the ordinance can stand.” (Id. at p. 229.)
In 1979, two decades after the Lambert decision, a willfulness element was
for the first time introduced into section 290. All failures to register remained
misdemeanors. However, a person convicted of specified sex offenses who
“willfully” violated the statute was required to spend at least 90 days in county
jail. (§ 290, former subd. (f), as amended by Stats. 1979, ch. 944, § 8, p. 3256.)2
As introduced, this provision had no element of willfulness. “Any person required
to register under the provisions of this section who shall violate any of the
provisions thereof is guilty of a misdemeanor and shall be sentenced to serve a
term of not less than 90 days nor more than one year in the county jail.” (Legis.
Counsel’s Dig. Sen. Bill No. 13 (1979-1980 Reg. Sess.) as introduced
2
In 1989, willfully failing to register became a felony if the offender had two
prior convictions for failure to register. All other failures to register under section
290 remained misdemeanors. (§ 290, former subd. (g)(1), (2), as amended by
Stats. 1989, ch. 1407, § 4, pp. 6194-6195.) Since 1994, only willful violations
have been punishable. (§ 290, subd. (g)(1), as amended by Stats. 1994, ch. 867,
§ 2.7, p. 4393.)
11
Dec. 4, 1978.) The bill was amended seven times before the willfulness element
was added. (Legis. Counsel’s Dig. Sen. Bill No. 13 (1979-1980 Reg. Sess.) as
amended Aug. 30, 1979.)
The parties have not drawn our attention to, nor has our research revealed,
any explanation in the legislative history as to why the willfulness element was
added in the 1979 amendment. Lambert, however, provides a basis for
speculation. The 1979 amendment provided a greater penalty—at least 90 days in
county jail and probation for at least one year—for failure to register by those
convicted of specified sex offenses. In light of Lambert, the Legislature may have
concluded that a conviction carrying the greater penalty would (or should) stand
only if, in the words of Lambert, “actual knowledge of the duty to register or proof
of the probability of such knowledge and subsequent failure to comply” (Lambert,
supra, 355 U.S. at p. 229) were shown. The Legislature may have added the
willfulness element because it reasoned, as we later reasoned in Garcia, that
knowledge is a concomitant of willfulness (Garcia, supra, 25 Cal.4th at p. 752).
This is speculation, but it has at least some basis. The legislative history,
being completely silent on the question why the willfulness element was added by
the 1979 amendment, provides no basis whatsoever for the assertion made by
defendant—that the Legislature in 1979 intended that the willfulness element
might be negated by proof that an offender just forgot to register.
The dissenting justice below finds significance in the fact that subsequent
attempts to amend section 290 to delete the willfulness element were unsuccessful.
However, unpassed bills, as evidence of legislative intent, have little if any value.
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,
1396.)
The dissenting justice below also found significance in the fact that federal
income tax law, immigration law, and selective service law recognize the
12
“significant difference between a statute criminally punishing the mere failure to
perform a legally required act, as to which forgetting provides no defense, and the
willful failure to do so, for which the penalty typically is greater but which is not
made out unless the failure reflects a conscious decision not to comply.”
However, as we explained in Wright, in interpreting section 290, it is not
particularly helpful to resort to case law arising from “a different statutory scheme
addressing a different substantive evil enacted by a different legislative body.”
(Wright, supra, 15 Cal.4th at p. 530.)
Admittedly, the argument that a person cannot be said to know something if
he or she has forgotten it, for whatever reason, does have a superficial plausibility.
However, we agree with Cox and the majority below: It is simply inconceivable
the Legislature intended just forgetting to be a sufficient excuse for failing to
comply with section 290’s registration requirements.
“Our role in construing a statute is to ascertain the Legislature’s intent so as
to effectuate the purpose of the law. (People v. Snook (1997) 16 Cal.4th 1210,
1215.)” (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.) In the end, we
must adopt the construction that is most consistent with the apparent legislative
purpose and avoids absurd consequences. (In re J. W. (2002) 29 Cal.4th 200, 213;
Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003; People v.
Rubalcava (2000) 23 Cal.4th 322, 328.)
“The purpose of section 290 is 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. [Citation.]” (Barrows v. Municipal Court (1970) 1 Cal.3d 821,
825-826; accord, Wright, supra, 15 Cal.4th at p. 527; People v. McClellan (1993)
6 Cal.4th 367, 376, fn. 7.) “Plainly, the Legislature perceives that sex offenders
13
pose a ‘continuing threat to society’ [citation] and require constant vigilance.
[Citation.]” (Wright, at p. 527.)
“To this end, a convicted sex offender must register not only on conviction,
but whenever ‘coming into any city, county, or city and county in which he or she
temporarily resides or is domiciled . . . .’ (§ 290, subd. (a).) Supplemental address
change information helps law enforcement agencies keep track of sex offenders
who move within the same city or county or are transient. In large cities such as
Los Angeles or huge counties like San Bernardino, where offenders can easily
relocate without reregistering, section 290(f) seeks to prevent them from
disappearing from the rolls. Ensuring offenders are ‘readily available for police
surveillance’ (Barrows v. Municipal Court, supra, 1 Cal.3d at p. 825) depends on
timely change-of-address notification. Without it law enforcement efforts will be
frustrated and the statutory purpose thwarted. The statute is thus regulatory in
nature, intended to accomplish the government’s objective by mandating certain
affirmative acts. Compliance is essential to that objective; lack of compliance
fatal.” (Wright, supra, 15 Cal.4th at p. 527, italics added.)
In
Wright, we noted with approval an observation made by the district
attorney in that case: “[S]ex offenders often have a transitory lifestyle or
deliberately attempt to keep their movements secret. Requiring a prosecutor to
prove when the person moved—information uniquely within that individual’s
knowledge and control—would hinder or even foreclose many prosecutions under
section 290(f).” (Wright, supra, 15 Cal.4th at p. 529.) Predictably, were we to
accept defendant’s position, every sex offender charged with failure to register
would claim to have forgotten to do so. Defendant makes light of the burden this
would entail for the prosecution, asserting the prosecution would be able to present
circumstantial evidence of the improbability the offender forgot, such as failure to
“respond to reminders.” Proving a sex offender failed to update his or her
14
registration within the grace period is straightforward enough, largely a matter of
documentary evidence. On the other hand, whether an offender was reminded of the
registration obligation and failed to respond to the reminders is information, like
information as to when an offender moved, “uniquely within that individual’s
knowledge and control” (Wright, at p. 529). Identifying the sex offender’s
associates, and then attempting to prove through their testimony that the offender
had failed to respond to reminders, would be a burden of an altogether different
character and incalculably greater magnitude than the prosecution has heretofore
been required to shoulder. Imposing such burden, we believe, cannot have been the
Legislature’s intent. “Impeding vigorous prosecution can only encourage scofflaws,
resulting in further violations and compounding ‘the substantive evil [the
Legislature] sought [through section 290] to prevent.’ [Citation.]” (Id. at p. 529.)
In summary, we conclude that countenancing excuses of the sort given by
defendant―that he just forgot about his registration obligation―“would
effectively ‘eviscerate’ the statute” just as surely as characterizing violation of the
statute as an instantaneous offense would have eviscerated it. (Wright, supra, 15
Cal.4th at p. 528.)
We emphasize the limits of our holding. We do not here express an
opinion as to whether forgetfulness resulting from, for example, an acute
psychological condition, or a chronic deficit of memory or intelligence might
negate the willfulness required for a section 290 violation.3
3
As previously noted, the majority below, in dictum, opined: “In contrast to
the kind of subjective ‘forgetfulness’ defense argued by appellant here, under the
statutory definition of ‘willfully’ found at section 7, subdivision 1, an omission to
act would not be ‘willful’ if objective circumstances beyond the defendant’s
control prevented him from acting. For example, a debilitating injury, illness or
mental infirmity might objectively prevent a defendant from registering in timely
fashion, thereby rendering ‘unwillful’ the defendant’s failure to register in
(Footnote continued on next page)
15
Finally, defendant contends the trial judge made several instructional errors
regarding his claim that he forgot to update his registration: “[Defendant] was
denied his rights under the United States and California Constitutions to the due
process of law, to a jury trial, and to present a defense by the combination of (a)
the court’s failure to instruct as to the ‘knowledge’ element of violation of section
290, (b) the court’s instruction to the effect that ‘ignorance of the law is not an
excuse,’ and (c) the court’s informing the jury that ‘forgetting’ is not a defense to
violation of section 290.”
This case was tried in 2000, the year before we issued our opinion in
Garcia. Therefore, the jury was not instructed, as we held in Garcia a jury trying
an alleged section 290 violation should be instructed―that willful failure to
register requires actual knowledge of the duty to register (Garcia, supra, 25
Cal.4th at p. 752). However, as it was in Garcia, this instructional error here was
harmless beyond a reasonable doubt. (Id. at p. 755.) The record amply reflects
that defendant actually knew of his duty to update his registration within five
working days of his birthday. Moreover, in trying the case to the jury, defense
counsel effectively conceded the point, arguing, instead, that defendant had simply
forgotten to update his registration.
As previously stated, the record demonstrates defendant was not only
notified of his annual registration obligation, but also actually knew what his
obligation was. In 1996, 1997, and 1998, defendant signed and dated boxes on
forms that recited this obligation. Seven months before he committed this offense,
defendant again signed a sex offender registration form. On this form he initialed
15 statements advising him of his various registration obligations, including the
compliance with the strict time deadlines of section 290, and providing a defense
whether or not the defendant had also simply forgotten his obligation to register.
[Fn. omitted.]”
16
following statement: “I must, annually, within 5 working days of my birthday, go
to the law enforcement agency having jurisdiction over my location or place of
residence and update my registration, name, and vehicle registration.” When he
was arrested for this offense, defendant acknowledged he had not only initialed
these advisements but also that he had read and remembered them, although only
“vaguely.” Asked why he had failed to update his registration within the grace
period, defendant responded, “[B]ecause I’m in a program, I’m a house manager,”
a job that “keeps me busy all the time.” Pressed further, he said, “Well, you know
what, I totally forgot about it, I’m not going to make up no excuses.” Asked
whether it was safe to say his annual registration obligation had “[k]ind of just
skipped [his] mind,” defendant answered, “Yes.”
Defense counsel tried this case to the jury on the theory that defendant
forgot to register, not that he did not actually know of the obligation. “What did
he tell the police? That he forgot. It slipped his mind. Well, you know what, I
totally forgot about it. I’m not going to make up no excuses. I was busy. I’m a
house manager. I’m in the program. [¶] To find Don Barker not guilty obviously
you need to accept that statement.” Defense counsel elaborated on this argument:
“I know automatically one would think, how the heck can you forget such an
important thing. And it comes up on an important day. For Don Barker, it’s a
landmark day. It’s March 5th. It’s his 50th birthday. [¶] The answer I’ve just
given you. He’s focused on his issues, his substance abuse, his treatment, his new
duties as a house manager. It happens. It happened here. This is not a guy who’s
on the run. This is not a guy that’s in hiding. This is a man that forgot to do what
the law requires him to do. Period.” “He has a history of registration. . . . It’s in
evidence. Look at it. This is a guy that does register. In this instance, he forgot.”
We turn to defendant’s second related claim of instructional error. In
Garcia, we held the trial court “erred in giving an ‘ignorance of the law is no
17
excuse’ instruction (CALJIC No. 4.36), which on its face would allow the jury to
convict defendant of failing to register even if he were unaware of his obligation to
do so.” (Garcia, supra, 25 Cal.4th at p. 754.) CALJIC No. 4.36 was not given
here. However, defendant contends an instruction that was given―CALJIC
No. 3.30― was also “clearly an ‘ignorance of the law is no excuse’ instruction,
inappropriate in a registration case.”
CALJIC No. 4.36 (Jan. 2004 ed.) states: “When the evidence shows that a
person voluntarily did that which the law declares to be a crime, it is no defense
that [he] [she] did not know that the act was unlawful or that [he] [she] believed it
to be lawful.” In accordance with CALJIC No. 3.30, the jury here was instructed:
“In the crimes charged in the information, there must exist a union or joint
operation of act or conduct and general criminal intent. General criminal intent
does not require an intent to violate the law. When a person intentionally does that
which the law declares to be a crime, he is acting with general criminal intent,
even though he may not know that his act or conduct is unlawful.”
Defendant’s position is supported by People v. Edgar (2002) 104
Cal.App.4th 210. “The trial court in this case gave the same willfulness
instruction found inadequate in Garcia. (See CALJIC No. 1.20.) Furthermore,
like the ‘ignorance of the law is no excuse’ instruction (CALJIC No. 4.36) given
in Garcia, the general intent instruction given here (CALJIC No. 3.30) ‘on its face
would allow the jury to convict [appellant] of failing to register even if he were
unaware of his obligation to do so.’ (People v. Garcia, supra, 25 Cal.4th at
p. 754.) We therefore find that the instructions given in this case also were
erroneous in that they failed to clearly state that a conviction required actual
knowledge of the duty to register. (Ibid.)” (Edgar, at p. 219; accord, People
v. Poslof (2004) 119 Cal.App.4th 215, 223-226; People v. Jackson (2003) 109
Cal.App.4th 1625, 1634-1635.)
18
While the dissenting justice below agreed with Edgar, the majority did not.
“In short, we conclude that, read in combination with the CALJIC No. 1.20
instruction on willfulness, the trial court’s general intent instruction pursuant to
CALJIC No. 3.30 did not mislead the jury. ‘The general intent instruction
required an “intentional” failure to register. The “willful” instruction required a
“purpose or willingness” to make the omission.’ (People v. Johnson [(1998)]
67 Cal.App.4th [67,] 73.) Together, these two instructions correctly informed the
jury that in order to be convicted of violating section 290, appellant had to have
knowledge that he was required to register. There was no error.”
We agree with Edgar that a jury might take the same lesson from CALJIC
No. 3.30 as from CALJIC No. 4.36—that a defendant may be guilty of violating
section 290 even if unaware of his or her obligation to register. However, for the
reasons stated above, we conclude the error here was harmless beyond a
reasonable doubt. The record amply reflects defendant was aware of his
registration obligation, and his counsel did not claim the contrary in trying the case
to the jury. (See Garcia, supra, 25 Cal.4th at pp. 754-755.)
Defendant’s last claim of instructional error arises from the trial court’s
response to a question asked by the jury. In a note, the jury asked, “Is forgetting to
regester [sic] a ‘willful’ act according to the law.” The judge instructed them:
“[F]orgetting to register by itself does not provide a defense to a charge of willful
failure to register.” We have concluded the willfulness element of a section 290
violation may not be negated by just forgetting to register. Accordingly, in the
circumstances of this case, the instruction in question was not erroneous. Again,
we express no opinion as to whether the instruction would be erroneous where a
defendant’s forgetfulness allegedly arose from an acute psychological condition,
or a chronic deficit of memory or intelligence.
19
CONCLUSION
The judgment of the Court of Appeal is affirmed.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
20
DISSENTING OPINION BY KENNARD, J.
Penal Code section 2901 requires a person convicted of a sex offense to
register with law enforcement authorities as a convicted sex offender. The
registration must be updated within five working days of the offender’s birthday.
(§ 290, former subd. (a)(1)(C), now subd. (a)(1)(D).) If the sex crime that gave
rise to the registration requirement was a felony, a “willful” failure to update the
registration is also a felony. (Id., subd. (g)(2).)
I disagree with the majority’s holding that an offender who inadvertently is
one day late in updating his already registered address has willfully violated
section 290.
I
Twenty-five years ago, defendant was convicted of three forcible sex
offenses, for which he was sentenced to prison and ordered to register as a sex
offender for the rest of his life.
In the year 2000, defendant was living in San Mateo at Project 90, a
rehabilitation project for alcohol and drug abusers. He had registered with the San
Mateo Police Department, giving Project 90 as his address. Because his birthday
1
All further statutory citations are to this code.
1
was March 5, he was statutorily required to update his registration by March 10,
the fifth working day after his birthday. He did not do so. On the morning of
March 13, which was a Monday and the first working day after the time to update
his registration expired, a San Mateo police officer called Project 90 and left a
recorded message asking to speak to defendant. Defendant returned the call in 15
minutes and appeared at the police station within an hour. He said he had
forgotten to update his registration.
Although defendant was only a day late in updating his registration, he was
arrested and charged with violating section 290. At trial, the jury submitted this
question during its deliberations: “Is forgetting to regester [sic] a ‘willfull’ [sic]
act according to the law.” The trial court responded that “forgetting to register by
itself does not provide a defense to a charge of willful failure to register.” The
jury convicted defendant of violating section 290. Because of defendant’s prior
felony convictions, the trial court could have sentenced him to 25 years to life
under the “Three Strikes” law. Instead, the court struck all but one of his prior
convictions and sentenced him to nine years in prison.
II
Subdivision (g)(2) of section 290 provides that with exceptions not relevant
here, “any person who is required to register under this section based on a felony
conviction . . . who willfully violates any requirement of this section . . . is guilty
of a felony . . . .” (Italics added.) At issue is whether a defendant who initially
knew of the duty to update the registration within five working days of his or her
birthday, but who forgets to do so in that period, has willfully violated section 290.
Pertinent here is People v. Garcia (2001) 25 Cal.4th 744 (Garcia). There,
the defendant argued that for an offender to “willfully” violate section 290 the
2
offender must have actual knowledge of the duty to do so. This court
unanimously2 agreed.
Unlike the defendant in Garcia, who claimed he never learned of the duty
to register, defendant here admits he knew he had to update his registration but
says he forgot he had to do so within the requisite five days after his birthday.
Although Garcia is factually distinguishable, its reasoning is dispositive here.
Garcia explained: “Logically one cannot purposefully fail to perform an act
without knowing what act is required to be performed. As stated in People v.
Honig (1996) 48 Cal.App.4th 289, 334, ‘the term “willfully” . . . imports a
requirement that “the person knows what he is doing.” ’ ” (Garcia, supra, 25
Cal.4th at p. 752, italics added.)
Forgetting to do something means an inadvertent failure to do something.
That is the opposite of a purposeful or willful failure to act. “The word ‘willfully,’
when applied to the intent with which an act is done or omitted, implies simply a
purpose or willingness to commit the act, or make the omission referred to.” (§ 7.)
A “willful” omission to perform a duty imposed by law, such as the duty to
register as a sex offender, is an intentional omission, not an omission caused by
negligence, inadvertence, or forgetfulness. (See, e.g., Boags v. Municipal Court
(1987) 197 Cal.App.3d 65, 71 [a public officer’s “willful omission” to perform a
legal duty means “a willing intentional omission” to perform the duty].) A willful
act is one done “ ‘intentionally or purposely as distinguished from accidentally or
2
Although I authored a concurring and dissenting opinion in Garcia, I
disagreed only with the majority’s conclusion that the instructional error in that
case was harmless. (Garcia, supra, 25 Cal.4th at pp. 759-762 (conc. & dis. opn.
of Kennard, J.).)
3
negligently . . . .’ ” (Black’s Law Dict. (7th ed. 1999) p. 1593, quoting Perkins &
Boyce, Criminal Law (3d ed. 1982) pp. 875-876.) Here, defendant’s inadvertent
failure to register timely was unquestionably negligent, but it was not willful.
III
Section 290 is a regulatory offense. (Maj. opn., ante, at p. 10; see also
Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Such offenses often require
a degree of culpability that is less than the criminal negligence customarily
required for conviction of a crime. This court has “assumed” that regulatory
offenses with such reduced culpability levels “are constitutionally permissible
where the purpose is to protect public health and safety and the penalties are
relatively light.” (People v. Simon (1995) 9 Cal.4th 493, 521, italics added.)
But the penalties for violating section 290’s registration requirements are
anything but light. Many sex offenders charged with failing to update their
registration have two or more prior convictions that qualify as “strikes” under the
Three Strikes law (§§ 667, subds. (b)-(f), 1170.12), because most sex offenses are
strikes (see 667.5, subd. (b) [listing crimes qualifying as strikes], 1192.7, subd. (c)
[same]), and because even a single sexual assault involving a single victim often
results in convictions on multiple counts, each of which is a strike (see generally
People v. Harrison (1989) 48 Cal.3d 321). Thus, many violators of section 290
face sentences of 25 years to life under the Three Strikes law. To impose such a
sentence on defendants who inadvertently fail to timely update their registrations,
a degree of culpability below that of criminal negligence, may violate the state
Constitution’s prohibition of cruel or unusual punishment (Cal. Const., art. I, § 17)
4
or the federal Constitution’s prohibition of cruel and unusual punishment (U.S.
Const., 8th Amend.).3
When a statute is susceptible to two constructions, one of which raises
serious constitutional questions, courts construe the law to avoid such questions.
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509.) Therefore, I
would construe the term “willfully” in section 290 as not applying to a convicted
sex offender who inadvertently does not register timely with the police.
IV
In holding that forgetting to update registration as a convicted sex offender
is a willful violation of section 290, the majority relies on a Court of Appeal
decision, People v. Cox (2002) 94 Cal.App.4th 1371. Quoting Cox, the majority
states: “ ‘A spouse may forget a wedding anniversary, a patient a medical
appointment; such lapses arise not from a lack of actual knowledge but a failure to
respond to cues. Persons keep calendars and appointment books, ask others to
remind them of duties and obligations and tie strings around their fingers all to
insure that important responsibilities are met. We conclude that within this
3
In People v. Carmony (July 8, 2004, S115090) 33 Cal.4th ___), the
defendant was convicted of violating section 290 and sentenced to a term of 25
years to life in prison based on his failure to update his registration as a sex
offender within five days of his birthday, which the defendant claimed was
inadvertent. After addressing other unrelated issues, this court remanded the case
to the Court of Appeal to consider the defendant’s contention that his sentence
violated the state and federal Constitutions’ prohibitions against cruel and/or
unusual punishment. (Id. at p. ___, fn. 6.) The question whether the defendant’s
sentence violated those constitutional provisions was not before this court in
Carmony. Nor was the question at issue here: the meaning of the term “willfully”
as used in section 290.
5
context one willfully fails to register when possessed of actual knowledge of the
requirement he or she forgets to do so.’ ” (Maj. opn., ante, at p. 6.)
In response, I quote the observation by the dissenting Court of Appeal
justice in this case: “One who forgets to do something – such as celebrate a
wedding anniversary, or keep a medical appointment, using the examples in Cox –
does not willfully insult their spouse or willfully stand up their doctor. Whatever
the consequences of such an inadvertent omission may be, if one has forgotten, the
omission is not willful.”
The majority fears that, unless inadvertently failing to register is treated as
a violation of section 290, offenders who choose not to register will falsely claim
they forgot to do so, thus making it hard for prosecutors to prove their guilt. (See
maj. opn., ante, at pp. 14-15.) Such a claim, however, will succeed only if the jury
believes it. Jurors are notoriously reluctant to attach great credibility to the
testimony of convicted sex offenders. Also, the longer the delay in registering, the
less credible the claim of “I forgot” becomes.
When, as here, the offender was only one day late in updating the
registration, it may indeed be more difficult to establish that the violation was
willful under section 290. Why shouldn’t it be? It may be just as difficult to
prosecute for willful tax evasion a taxpayer who is one day late in filing a
mandatory tax return. (See 26 U.S.C. § 7203 [a person who “willfully” fails to
pay taxes is guilty of a misdemeanor].) In this case, defendant’s claim that he
forgot to update his registration was highly credible: He was working as a house
manager at Project 90, he responded immediately to the telephone call from the
police, and he was only one day late in updating his registration. At sentencing,
6
the trial court found that there was no evidence that defendant had deliberately
tried to conceal his whereabouts from the police.
The majority’s holding defeats the purpose of section 290’s registration
requirement, which is “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.”
(Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825-826.) As a result of the
majority’s holding, a person who genuinely forgets to register on time is likely to
go into hiding to avoid arrest, particularly when facing, like defendant here, a
sentence of 25 years to life under the Three Strikes law. In making it more
difficult to track down these offenders, the majority has frustrated the
Legislature’s goal of making those individuals “readily available for police
surveillance at all times.” (Ibid.)
CONCLUSION
That people may forget to do things they sincerely want and intend to do is
a matter of common experience. Forgetting cannot be willed; it is an unplanned
malfunction of the conscious mind. For this reason, a person who intends to do
something, but forgets to do it, has not willfully failed to do that thing. Thus, I
disagree with the majority that a person may commit the criminal offense of
“willfully” violating the sex offender registration law—a crime for which a
defendant may spend the rest of his life in prison—by mere forgetfulness.
I would reverse the judgment of the Court of Appeal.
KENNARD,
J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Barker
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 107 Cal.App.4th 147
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S115438Date Filed: August 30, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: San Mateo
Judge: Dale A. Hahn
__________________________________________________________________________________
Attorneys for Appellant:
Richard Such, under appointment by the Supreme Court, for Defendant and Appellant. Jack Funk, Assistant Public Defender, for California Public Defenders Association as Amicus Curiae on
behalf of Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Ronald A. Bass, Gerald A. Engler and Mary Jo Graves, Assistant Attorneys
General, René A. Chacón, Laurence K. Sullivan, Ronald E. Niver, Stan Cross and Janet E. Neeley, Deputy
Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard SuchFirst District Appellate Project
730 Harrison Street, No. 201
San Francisco, CA 94107
(415) 495-3119
Janet E. Neeley
Deputy Attorney General
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
(916) 324-5257
2
Opinion Information
| Date: | Docket Number: |
| Mon, 08/30/2004 | S115438 |
Parties
| 1 | Barker, Donald (Defendant and Appellant) Represented by W. Richard Such 1st District Appellate Proj 730 Harrison St #201 San Francisco, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Janet E. Neeley Supervising Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 3 | California Public Defenders Association (Amicus curiae) Represented by John Nelson Funk Ofc Public Defender 800 Ferry St Martinez, CA |
| Disposition | |
| Aug 30 2004 | Opinion: Affirmed |
| Dockets | |
| Apr 28 2003 | Petition for review filed by counsel for aplt c/a rec req |
| May 20 2003 | Received Court of Appeal record file jacket/briefs/sealed envelope/accordian file |
| Jun 4 2003 | Received: letter from counsel for appellant re: New Decision relevant to Petition for Review. |
| Jun 11 2003 | Petition for Review Granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, Moreno, JJ. |
| Jul 9 2003 | Counsel appointment order filed the First Dist. Appellate Project is appointed to represent appellant. Aplt's brief on the merits shall be served & filed on or before 30 days from this order. (8-8-03) |
| Aug 6 2003 | Request for extension of time filed for aplt to file the opening brief on the merits, to 9-8-03. |
| Aug 15 2003 | Filed: aplt counsel's supp declaration re extension request |
| Aug 20 2003 | Extension of time granted to 9-8-03 for aplt to file the opening brief on the merits. No further extensions of time will be granted. |
| Sep 8 2003 | Opening brief on the merits filed by aplt |
| Sep 23 2003 | Filed: by counsel for respondent (People) Motion for Clarification of the Court's disposition of Appellant's Application to file Nonconforming Brief. |
| Oct 21 2003 | Request for extension of time filed counsel for resp. (People) requests an extension to November 21, to file the answer brief. |
| Oct 28 2003 | Extension of time granted Respondent's time to serve and file the answer brief is extended to and including November 3, 2003. No further extensions will be granted. |
| Nov 3 2003 | Answer brief on the merits filed by resp |
| Nov 24 2003 | Request for extension of time filed for aplt to file the reply brief on the merits, to 12-9. |
| Dec 8 2003 | Extension of time granted to 12-9-03 for aplt to file the reply brief on the merits. No further extensions of time will be granted. |
| Dec 9 2003 | Received: aplt's reply brief (oversized) |
| Dec 15 2003 | Filed: notice of change of counsel for resp (A.G. office) |
| Dec 18 2003 | Reply brief filed (case fully briefed) aplt's brief. (filed with Ct's permission) |
| Jan 20 2004 | Received application to file amicus curiae brief; with brief California Public Defenders Association (non-party) |
| Jan 30 2004 | Permission to file amicus curiae brief granted by Calif. Public Defenders Association in support of aplt. Answers may be filed w/in 20 days. |
| Jan 30 2004 | Amicus curiae brief filed by Calif. Pub. Def. Assn. in support of aplt. |
| Feb 11 2004 | Response to amicus curiae brief filed resp's answer to the A/C brief of Cal. Pub. Defenders Assn. |
| Mar 10 2004 | Filed: letter from !st Dist Aplt Project requesting that oral argument not be scheduled for May. |
| Apr 28 2004 | Case ordered on calendar 6-2-04, 1:30pm, Los Angeles (Reset from 5-26-04, S. F. @ 9:00 a.m.) |
| May 3 2004 | Filed: Request of aplt's counsel to continue oral argument |
| May 26 2004 | Cause called and continued (to June 2, 2004) |
| May 26 2004 | Order filed Defendant's Sept. 8, 2003 application for leave to file a brief on the merits in excess of 14,000 words (see CRC, rule 29.1(c)(1)) is granted. Defendant's Sept. 8, 2003 request that an "appendix" to the merits brief be treated as part of the brief is denied. (CRC, rules 14(d) [limiting attachments to briefs to "copies of exhibits or other materials in the appellate record"] and 29.1(b)(3) [limiting merits briefs to issues presented in the petition for review or fairly included therein]. Defendant's Dec. 10, 2003 application for leave to file a reply brief in excess of 4,200 words (see CRC, rule 29.1(c)(1)) is granted.] |
| Jun 2 2004 | Cause argued and submitted |
| Aug 30 2004 | Opinion filed: Judgment affirmed in full Majority opinion by Brown, J. -------------------joined by George, C.J., Baxter, Werdegar, Chin, Moreno, JJ. Dissenting opinion by Kennard, J. |
| Sep 14 2004 | Rehearing petition filed by counsel for appellant |
| Sep 21 2004 | Time extended to consider modification or rehearing to and including November 24, 2004, or the date upon which rehearing is granted or denied, whichever comes first. |
| Sep 29 2004 | Rehearing denied Request for modification denied. Kennard, J., is of the opinion the petition should be granted. George, C.J., was absent and did not participate. |
| Sep 29 2004 | Remittitur issued (criminal case) |
| Oct 27 2004 | Compensation awarded counsel Atty Such |
| Briefs | |
| Sep 8 2003 | Opening brief on the merits filed |
| Nov 3 2003 | Answer brief on the merits filed |
| Dec 18 2003 | Reply brief filed (case fully briefed) |
| Jan 30 2004 | Amicus curiae brief filed |
| Feb 11 2004 | Response to amicus curiae brief filed |
