Stanford Law School - Robert Crown Law Library

Filed 4/19/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S115377
v.
) Ct.App.
3
C033771
MICHAEL FREDERICK BRITT,
El Dorado County
Defendant and Appellant.
Super. Ct. No. WS98F205

In California, certain sex offenders are required by statute to register with
law enforcement authorities where they are residing. When they change residence
within California, they must notify the local authorities in both their former and
new residences. (Pen. Code, § 290, subds. (a)(1)(A) and (f)(1).)1 We must decide
whether a person subject to these requirements who moves once from one county
to another within California without notifying the authorities in either county, and
hence who violates both subdivisions (a) and (f) of section 290, may be prosecuted
and punished separately for each crime—once in the county of the former
residence and once in the county of the new residence.
We conclude that the person may not be separately punished for the two
failures to notify. Moreover, although he may be charged with both offenses in
either county, when, as here, the prosecution knows or should know of both
offenses, he may be prosecuted for them only once.

1
All further statutory references are to the Penal Code.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Michael Frederick Britt has prior convictions for sexual crimes
that require him to register with the appropriate law enforcement agency where he
lives, to notify that agency when he moves, and to register in his new home.
(§ 290.) When he moved from Sacramento County to El Dorado County, he failed
to notify law enforcement authorities in either county. A warrant for his arrest
issued in Sacramento County. He was arrested in El Dorado County on April 8,
1998, and was booked both for the Sacramento County arrest warrant and for
failing to register in El Dorado County. On May 8, 1998, an amended complaint
was filed in Sacramento County charging defendant with not notifying the
authorities in that county of his new address, a felony. Defendant pleaded no
contest to the charge on January 15, 1999, and the court placed him on probation
on terms including that he serve 180 days in the county jail.
On June 29, 1998, while the charges in Sacramento County were pending, a
complaint was filed in El Dorado County charging defendant with not registering
in that county, also a felony. The preliminary hearing in this matter was held on
March 5, 1999, after the Sacramento County prosecution had ended. Comments
by the parties and court at that hearing indicate that the El Dorado County
prosecutor had known about the Sacramento County prosecution and had agreed
to let the Sacramento County case proceed first. The information in the El Dorado
County prosecution was filed on March 12, 1999. It charged defendant with not
registering in that county and alleged that he had two prior serious felony
convictions within the meaning of the Three Strikes law. (See generally People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 504-506.)
Defendant moved to set aside the El Dorado County information on the
ground that he had been convicted previously in Sacramento County for an offense
arising out of the same course of conduct and, therefore, that section 654 barred
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the second prosecution in El Dorado County. The court denied the motion.
Defendant then waived his right to a jury trial. The court found him guilty of not
registering in El Dorado County and found true that he had two prior serious
felony convictions. It struck the prior convictions for purposes of sentencing (see
People v. Superior Court (Romero), supra, 13 Cal.4th 497) and granted probation
on terms including that he serve 365 days in the county jail.
The Court of Appeal affirmed the judgment. The majority concluded that
“both prosecutions are permissible because a person necessarily has two separate
intents and objectives in violating both subdivisions (a) and (f) of section 290, and
each crime is a separate continuing act that is not so interrelated with the other act
as to come within provisions of section 654.” Justice Sims dissented. He argued
that “prosecution of the El Dorado County offense was barred by Penal Code
section 654 because defendant had been convicted and sentenced on the
Sacramento County offense and he could not properly be punished for both the
Sacramento County offense and the El Dorado County offense.”
We granted defendant’s petition for review.
II. DISCUSSION
A. Background
Section 654, subdivision (a), provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a prosecution for the same
act or omission under any other.” “Section 654’s preclusion of multiple
prosecution is separate and distinct from its preclusion of multiple punishment.
The rule against multiple prosecutions is a procedural safeguard against
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harassment and is not necessarily related to the punishment to be imposed . . . .”
(Neal v. State of California (1960) 55 Cal.2d 11, 21.) We must decide how
section 654 operates regarding two sex offender registration requirements.
Section 290, subdivision (a)(1)(A), requires certain sex offenders in
California, including defendant, to register with the appropriate law enforcement
authorities where they reside.2 Section 290, subdivision (f)(1), also requires those
offenders, when they move, to inform the law enforcement agency where they last
registered of their new address or location.3 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: section 290, subdivision (a)(1)(A), by not registering in
the new county; and section 290, subdivision (f)(1), by not informing authorities in
the old county of the new address. When, as here, the person must register
because of a felony conviction, violating these requirements is itself a felony.

2
Specifically, section 290, subdivision (a)(1)(A), requires defendant “to
register with the chief of police of the city in which he or she is residing, or if he
or she has no residence, is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, in an unincorporated area or
city that has no police department . . . within five working days of coming into, or
changing his or her residence or location within, any city, county, or city and
county . . . .”
3
Specifically, section 290, subdivision (f)(1), provides: “If any person who
is required to register pursuant to this section changes his or her residence address
or location, whether within the jurisdiction in which he or she is currently
registered or to a new jurisdiction inside or outside the state, the person shall
inform, in writing within five working days, the law enforcement agency or
agencies with which he or she last registered of the new address or location. The
law enforcement agency or agencies shall, within three days after receipt of this
information, forward a copy of the change of address or location information to
the Department of Justice. The Department of Justice shall forward appropriate
registration data to the law enforcement agency or agencies having local
jurisdiction of the new place of residence or location.”
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(§ 290, subd. (g)(2); see Wright v. Superior Court (1997) 15 Cal.4th 521, 523-
524.)
A defendant may clearly be convicted of violating both parts of section 290.
Section 654 limits multiple punishment and prosecution, not conviction. (See
People v. McFarland (1962) 58 Cal.2d 748, 762-763.) The question here is
whether defendant may be prosecuted and punished separately for the two
violations.4 We first consider the multiple punishment question.
B. Multiple Punishment
The test for determining whether section 654 prohibits multiple punishment
has long been established: “Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d
at p. 19.) A decade ago, we criticized this test but also reaffirmed it as the
established law of this state. (People v. Latimer (1993) 5 Cal.4th 1203, 1209-
1216.) We noted, however, that cases have sometimes found separate objectives
when the objectives were either (1) consecutive even if similar or (2) different
even if simultaneous. In those cases, multiple punishment was permitted. (Id. at
pp. 1211-1212.) Thus, we must decide whether defendant had the same objective
when he violated both subdivisions (a) and (f) of section 290.
Section 654 turns on the defendant’s objective in violating both provisions,
not the Legislature’s purpose in enacting them, but examining the overall purpose
behind the notification requirements helps illuminate the defendant’s objective in

4
This case involves a single move directly from one jurisdiction to another.
We express no opinion on how section 654 would apply to other facts, such as
multiple moves or the maintenance of multiple residences.
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violating them. “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.” (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825-826; accord,
Wright v. Superior Court, supra, 15 Cal.4th at p. 527.) Defendant’s objective in
violating this section was the opposite of the government’s—to avoid police
surveillance. To fulfill this objective, he committed two crimes of omission, but
each crime furthered the same objective. The failure to notify the former
jurisdiction (§ 290, subd. (f)(1)) and the failure to register in the new jurisdiction
(§ 290, subd. (a)(1)(A)) were means of achieving the same objective—to prevent
any law enforcement authority from learning of his current residence.
Section 290, subdivision (f)(1), requires the 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 fn. 3,
ante.) Thus, if a person informs only the former agency but not the new one, the
objective of avoiding police surveillance would be defeated, as the new agency
would learn of the change of address. The statute provides no converse
requirement; if the person informs the new agency of the new address, that agency
is not required to forward that information to the former agency. But the only way
a person can prevent the new agency from learning of the new residency, and thus
be sure of avoiding police surveillance, is to notify neither agency, that is, to
violate both of section 290’s reporting requirements. Defendant’s commission of
each crime was essential to the successful commission of the other, and he had the
same objective when he committed both crimes.
The majority below held that defendant had two separate objectives: “(1)
to mislead law enforcement and the residents of one community to believe that the
sex offender remains there; and (2) to conceal from law enforcement and the
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residents of another community the fact that the sex offender is now residing in
that community.” It relied heavily on People v. Perez (1979) 23 Cal.3d 545
(Perez). In Perez, we held that the defendant could be separately punished for
separate sex offenses against the same victim. “[F]ocus[ing] on the question
whether defendant should be deemed to have entertained single or multiple
criminal objectives” (id. at p. 552), we rejected the defendant’s argument that he
had but a single objective in committing each sex offense—to obtain sexual
gratification. “Such an intent and objective is much too broad and amorphous to
determine the applicability of section 654. . . . To accept such a broad, overriding
intent and objective to preclude punishment for otherwise clearly separate offenses
would violate the statute’s purpose to insure that a defendant’s punishment will be
commensurate with his culpability.” (Ibid.)
This rationale does not apply here. If the single objective of sexual
gratification in separate sex offenses is too amorphous, finding separate objectives
here—to mislead or conceal information from the law enforcement agency in each
county—parses the objectives too finely. In Perez, supra, 23 Cal.3d 545, the
objective—sexual gratification—was achieved each time the defendant committed
a sex offense. Each sex offense provided a new, and separate, sexual gratification;
hence, the objectives were consecutive even if similar. (See People v. Latimer,
supra, 5 Cal.4th at pp. 1211-1212.) Here the objective—avoiding police
surveillance—was achieved just once, but only by the combination of both
reporting violations.
The Attorney General relies on In re Hayes (1969) 70 Cal.2d 604, where
we upheld multiple punishment for the single act of driving while intoxicated and
with knowledge of a suspended license. That case, however, is distinguishable.
As we later explained, “neither of the Hayes violations, although simultaneously
committed, was a means toward the objective of the commission of the other. The
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objectives, insofar as the criminal conduct was concerned, were deemed by the
[Hayes] majority to be to drive while intoxicated and to drive with a suspended
license.” (People v. Beamon (1973) 8 Cal.3d 625, 639, quoted in People v. Perez,
supra, 23 Cal.3d at p. 552.) Here, however, each failure to report was “a means
toward the objective of the commission of the other.” (Beamon, supra, at p. 639.)
Defendant’s violation of both reporting provisions constituted the means of
achieving the common end of avoiding police surveillance.
Accordingly, we conclude that a person subject to section 290’s reporting
requirements who changes residence a single time within California without
reporting to any law enforcement agency, and who thus violates both subdivisions
(a) and (f) of section 290, may be punished for one of those crimes, but not both.
We note, however, that nothing in section 654 prohibits the court from considering
the overall circumstances, including the fact that the defendant violated both
provisions, in determining what punishment to impose for one of those offenses.
C. Multiple Prosecution
The leading case involving multiple prosecution under section 654 is
Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). In Kellett, the defendant
was standing on a sidewalk holding a pistol. He was charged with, and pleaded
guilty to, exhibiting a firearm in a threatening manner. We held that this
conviction prohibited a later prosecution for possessing a concealable weapon by a
felon arising out of the same facts. “When, as here, the prosecution is or should be
aware of more than one offense in which the same act or course of conduct plays a
significant part, all such offenses must be prosecuted in a single proceeding unless
joinder is prohibited or severance permitted for good cause. Failure to unite all
such offenses will result in a bar to subsequent prosecution of any offense omitted
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if the initial proceedings culminate in either acquittal or conviction and sentence.”
(Id. at p. 827.)5
Here, as we discussed in finding that multiple punishment is prohibited, the
same act or course of conduct—a single unreported move within California—
played a significant part in both omissions. This conclusion does not entirely
decide the question of multiple prosecution, however, for the bar against multiple
prosecution contains two limitations.
First, the bar does not apply if “joinder is prohibited or severance permitted
for good cause.” (Kellett, supra, 63 Cal.2d at p. 827.) It would be absurd to hold
that crimes must be tried together if they may not be tried together. We conclude
that California statutes permit these offenses to be joined together in a single
proceeding in either county. Defendant failed to report to law enforcement
agencies in two different counties, but that does not mean that each omission must
be tried in the county where the agency is located. “When a public offense is
committed in part in one jurisdictional territory and in part in another, or the acts
or effects thereof constituting or requisite to the consummation of the offense
occur in two or more jurisdictional territories, the jurisdiction of such offense is in
any competent court within either jurisdictional territory.” (§ 781.) Although this
statute speaks in terms of jurisdiction, it is actually a venue statute. (People v.
Simon (2001) 25 Cal.4th 1082, 1095-1096.) It “must be given a liberal

5
We recognized possible exceptions to this rule when the original
prosecution was for a less serious crime than the later prosecution. (Kellett, supra,
63 Cal.2d at pp. 827-828.) We also stated that “if an act or course of criminal
conduct can be punished only once under section 654, either an acquittal or
conviction and sentence under one penal statute will preclude subsequent
prosecution in a separate proceeding under any other penal statute.” (Id. at p.
828.) This seemingly all-encompassing statement is qualified by Kellett’s earlier
limitation of the prohibition against multiple prosecution to cases in which the
prosecution knew or should have known of the two offenses. (See In re Dennis B.
(1976) 18 Cal.3d 687, discussed below.)
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interpretation to permit trial in a county where only preparatory acts have
occurred . . . .” (Id. at p. 1109.) The notification requirements of both
subdivisions (a) and (f) of section 290 were triggered by defendant’s moving from
Sacramento County to El Dorado County. This single move necessarily involved
preparatory acts in both counties. Thus, either county would be a proper venue in
which to try both crimes. Moreover, the two crimes are connected together in
their commission and are of the same class of crimes; accordingly, they may be
joined in the same accusatory pleading. (§ 954.)
Second, the bar applies only when “the prosecution is or should be aware of
more than one offense . . . .” (Kellett, supra, 63 Cal.2d at p. 827.) In In re Dennis
B., supra, 18 Cal.3d 687, a juvenile made an unsafe lane change and collided with
a motorcycle, killing the cyclist. The juvenile was first charged with, and found
guilty of, making the unsafe lane change, an infraction. Later, it was alleged that
he committed vehicular manslaughter. We permitted the second action to proceed
even though both charges arose out of the same prohibited act. “The issue is,
under the Kellett standard, whether on the record herein the prosecution was or
should have been ‘aware of more than one offense.’ ” (Id. at pp. 692-693.) “The
reference in Kellett to situations in which ‘the prosecution is . . . aware of more
than one offense’ applies, however, only to intentional harassment, i.e., to cases in
which a particular prosecutor has timely knowledge of two offenses but allows the
multiple prosecution to proceed.” (Id. at p. 693.) Noting that “the fact that the
prosecution could have known of the multiple offenses does not necessarily lead to
the conclusion that it did know or should have known” (ibid.), we concluded that
the prosecution in that case neither knew nor should have known of both offenses.
This knowledge requirement is especially critical in a case, as here,
involving multiple prosecuting agencies. We do not suggest, for example, that if a
prosecuting agency charges a person with leaving a county without reporting, that
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agency must investigate where that person went, or decide whether additional
charges in the new location are appropriate. Whether the rule of Kellett, supra, 63
Cal.2d 822, applies must be determined on a case-by-case basis. We need not
explore these questions in detail here, however, because this record makes clear
that the El Dorado County prosecutor was fully aware of the simultaneous
Sacramento County prosecution. “[A] particular prosecutor actually knew of both
offenses in time to prevent a multiplicity of proceedings.” (In re Dennis B., supra,
18 Cal.3d at p. 693.) Accordingly, prosecuting the El Dorado County action after
defendant had been convicted of the Sacramento County charges violated section
654’s prohibition against multiple prosecution.
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BROWN, J.
MORENO, J.
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CONCURRING OPINION BY BAXTER, J.
I agree that in this case, where “the El Dorado County prosecutor was fully
aware of the simultaneous Sacramento County prosecution,” prosecution of the El
Dorado County action was barred by Penal Code section 654’s prohibition of
multiple prosecutions. (Maj. opn., ante, at p. 11.) I therefore join fully in the
judgment reversing defendant’s El Dorado County conviction. I write separately
only to highlight two aspects of the majority opinion:
1. The majority opinion’s discussion of the multiple-punishment issue is
unnecessary. Today, we reverse the judgment of conviction in the El Dorado
County action as violative of the bar on multiple prosecutions set forth in Penal
Code section 654. Neither El Dorado County nor Sacramento County will be able
to retry defendant for violating Penal Code section 290, subdivision (a)(1)(A).
Accordingly, any additional claim of error arising from the El Dorado County
action that presumes retrial is possible—i.e., any claim that defendant’s waiver of
jury trial was defective, that certain evidence was erroneously admitted or
excluded, or that defendant could not be separately punished for that offense—is
now moot. (E.g., People v. Killebrew (2002) 103 Cal.App.4th 644, 661 [reversal
for insufficient evidence renders remaining contentions “moot”]; Weston v.
Kernan (9th Cir. 1995) 50 F.3d 633, 639 [reversal for double jeopardy violation
renders remaining contentions “moot”].) Part B. of the majority opinion falls into
that category and is thus dictum.
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2. The bar on multiple prosecutions does not apply “if . . . ‘severance [is]
permitted for good cause.’ ” (Maj. opn., ante, at p. 9.) This case involves a
second prosecution under Penal Code section 290 brought by a contiguous county
that was fully aware of the simultaneous prosecution in Sacramento. Future cases
may involve counties that are geographically remote from each other or are
otherwise without the resources to shuttle witnesses from one place to the other.
Our decision today does not prevent a court from finding that good cause exists to
sever the charges in such circumstances.

BAXTER, J.
I CONCUR:
WERDEGAR, J.
2

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CONCURRING OPINION BY MORENO, J.
I agree with the majority’s reasoning and result. I also agree with the
second point of Justice Baxter’s concurring opinion. (See conc. opn. of Baxter, J.,
ante, p. 2.)
MORENO, J.
1

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Britt
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 107 Cal.App.4th 8
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S115377
Date Filed: April 19, 2004
__________________________________________________________________________________

Court:

Superior
County: El Dorado
Judge: Thomas A. Smith

__________________________________________________________________________________

Attorneys for Appellant:

William J. Arzbaecher III, under appointment by the Supreme Court, and Veronica A. Bonetti, under
appointment by the Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, David P. Druliner and
Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Assistant Attorney General, J. Robert
Jibson, Anthony L. Dicce, Janet E. Neeley and Raymond L. Brosterhous, Deputy Attorneys General, for
Plaintiff and Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

William J. Arzbaecher III
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

Raymond L. Brosterhous
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-7851

2

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Opinion Information

Date:	Docket Number:
Mon, 04/19/2004	S115377

Disposition
Apr 19 2004	Opinion: Reversed

Dockets
Apr 25 2003	Petition for review filed   by counsel for appellant (Michael Frederick Britt)
Apr 25 2003	Record requested
Apr 28 2003	Received document entitled:   Errata for Petition for review from counsel for appellant.
Apr 29 2003	Received Court of Appeal record   one doghouse
Jun 11 2003	Petition for Review Granted (criminal case)   Votes: George CJ., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Jul 9 2003	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Central California Appellate Program is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before 30 days from the date of this order.
Aug 1 2003	Request for extension of time filed   in Sacramento by counsel for appellant requesting to Sept. 8, 2003 to file opening brief on the merits.
Aug 8 2003	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 8, 2003.
Sep 3 2003	Request for extension of time filed   by counsel for appellant requesting to Sept. 15, 2003 to file opening brief on the merits. (recv'd in Sacto) (Granted - order being prepared)
Sep 9 2003	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 15, 2003. No further extensions will be granted.
Sep 12 2003	Opening brief on the merits filed   in Sacramento by counsel for appellant (Michael Frederick Britt).
Oct 2 2003	Request for extension of time filed   by respondent requesting to Nov. 12, 2003 to file answer brief on the merits. (recv'd in Sacto)
Oct 8 2003	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 12, 2003.
Nov 5 2003	Request for extension of time filed   by respondent requesting to Dec. 12, 2003 to file the answer brief on the merits. (recv'd in Sacto) (*granted - order being prepared)
Nov 13 2003	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including December 12, 2003. No further extensions of time will be granted.
Nov 25 2003	Answer brief on the merits filed   by counsel for resp. (People)
Dec 10 2003	Request for extension of time filed   Appellant requesting to Jan. 5, 2004 to file reply brief. (recv'd in Sacto)
Dec 17 2003	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief is extended to and including January 5, 2004. No further extensions are contemplated.
Jan 5 2004	Reply brief filed (case fully briefed)   in Sacramento by counsel for appellant (Michael Frederick Britt).
Feb 10 2004	Case ordered on calendar   3-11-04, 9am, S.F.
Mar 1 2004	Received:   In Sacramento letter from counsel for respondent re additional authorities.
Mar 11 2004	Cause argued and submitted
Apr 19 2004	Opinion filed: Judgment reversed   and remanded. Opinion by Chin, J. -----joined by George, C.J., Kennard, Brown, & Moreno, JJ. Concurring Opinion by Baxter, J. -----joined by Werdegar, J. Concurring Opinion by Moreno, J.
May 20 2004	Remittitur issued (criminal case)
May 26 2004	Received:   receipt for remittitur CA/3.
May 24 2006	Compensation awarded counsel   Atty Arzbaecher - Central California Appellate Program

Briefs
Sep 12 2003	Opening brief on the merits filed
Nov 25 2003	Answer brief on the merits filed
Jan 5 2004	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website