IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 2/7 B146786
DAVID WOODROW SMITH,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. NA 043592
Defendant, a convicted sex offender, is required to register with the police
and tell them where he is living. (Pen. Code, § 290.)1 He was charged with failure
to register in violation of section 290, subdivision (g), because he failed to inform
the police of a change of address within five working days, as required by section
290, subdivision (f)(1). Defendant claimed he mailed the required notice, but the
police did not receive it. After the trial court told the jury that a registered sex
offender must see to it that the written notification of a change of address is
actually received by the police, defendant was found guilty and sentenced to five
years in prison.
We conclude that the trial court erred in instructing the jury that a registrant
who mails a change-of-address notice within the statutory five-day period
Unless otherwise indicated, all statutory citations are to the Penal Code.
nevertheless violates section 290 if the police do not actually receive the notice.
Under the circumstances here the error was prejudicial. We therefore reverse the
judgment of the Court of Appeal affirming defendant’s conviction.
Defendant lived in Long Beach, California. He published an advertising
newspaper, the Bixby Beat, with a circulation of about 10,000. On April 7, 1999,
he told his readers in an editorial that he was selling the paper and moving east
where his family lived.
Defendant testified that he moved from Long Beach to Boulder, Colorado,
on April 10, 1999. He said that on April 12 he mailed a change-of-address card to
Long Beach Detective James Newland. Defendant also mailed a change-of-
address notice to the Long Beach Post Office. After a nine-day stay in Colorado,
defendant moved to Port Jervis, New York, where his daughter lived. After
arriving in New York he notified the California Department of Motor Vehicles and
the California Franchise Tax Board of his new residence.
Detective Newland testified that he did not receive any notice from
defendant and did not know that defendant had left California. On September 25,
1999, defendant was due for his annual reregistration as a sex offender. When
defendant did not appear, Detective Newland tried to contact defendant but found
defendant’s Long Beach apartment vacant. Following up on various leads,
Newland contacted Lieutenant Maryann Schultes of the police department in Port
Jervis, New York. Officers from that police department took defendant into
Lieutenant Schultes testified that during booking defendant told her he had
left Long Beach on April 10, 1999, but had not notified authorities because he
wanted “to start a new life.” Defendant, however, claimed that he told Lieutenant
Schultes that he mailed a change-of-address notice to the Long Beach Police.
Defendant denied telling Schultes that he had not notified authorities because he
wanted to start a new life.
The trial court instructed the jury: “In order to prove a violation of Penal
Code section 290 and 290(f)(2) . . . the following elements must be proved: . . .
[¶] That the person willfully and unlawfully failed to inform in writing the police
agency with whom he was last registered of his change of address . . . within five
working days of moving into any city or county or state.” The court did not define
the term “inform.”
During its deliberations, the jury told the court that after six votes it was
deadlocked with a seven-to-five split. According to the foreman, “we were pretty
dead set on our answers.” The court invited questions, and it conferred with
counsel as to how to respond to the questions.
When the jury returned to the courtroom, Juror No. 7 said that one juror
was interpreting the court’s instructions to mean that it did not matter whether
defendant sent a change-of-address notice to the Long Beach Police because “the
fact it didn’t get there meant there was no notification.” Juror No. 7 inquired if it
“was correct for that juror to interpret it that way.” The court responded: “It is the
obligation of the person who has to register to see that written notification is
received by the police department.” (Italics added.) Juror No. 11 asked: “If it is
his obligation, then why does ‘willful’ have anything to do with it?” The court
replied: “Because it goes to knowledge of obligation. Let me give you an
example. I don’t think it would be fair for a person who has to register to walk
down the street and see a police officer on patrol and throw a post card into that
police officer’s car and say, ‘Here, that’s all I have to do.’ Would it? . . . So I
don’t think that’s good enough. That’s just an off the top of my head example, but
the law is, I believe, that it is the obligation of the person who has to register . . . to
see to it that there is receipt of the written notification of a change of address or a
move out of the state.” Juror No. 11 then asked: “[W]hy doesn’t that just make
him guilty then if they don’t have it because he didn’t check it out to make sure
that they had received it? Why is there even a question here?” The court
responded, “I think that’s for you to decide.”
After the jury retired, defense counsel put on the record his objection to the
instruction that the defendant must prove receipt of the notice by the police
agency. The trial court acknowledged that defense counsel “may be absolutely
right,” and it invited counsel to renew his objection if there was a conviction. The
jury returned a guilty verdict 20 minutes later. Defendant then renewed his
objection in a motion for new trial. The trial court denied the motion and
sentenced defendant to five years in prison.
Section 290, subdivision (f)(1) states: “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.” (Italics added.) Virtually
identical language appears in three other statutes.2 The issue here is whether the
Section 186.30 requires a convicted gang member to register with the chief
of police of the city of residence; section 186.32, subdivision (b) provides:
“Within 10 days of changing his or her . . . address, any person subject to Section
186.30 shall inform, in writing, the law enforcement agency with whom he or she
last registered of his or her new address.” Section 457.1, subdivision (b)(1)
requires a convicted arsonist to register with the law enforcement agency of the
city where the person is residing; subdivision (g) states that if the registrant
“changes his or her residence address, he or she shall inform, in writing within 10
days, the law enforcement agency with whom he or she last registered of his or her
(Fn. continued on next page)
trial court erred in instructing the jury that this language imposes a duty on a
registrant “to see to it that there is receipt of a written notification of a change of
address.” No previous case has addressed that issue, either as to section 290,
subdivision (f)(1), or as to any of the other statutes using parallel wording.
The Attorney General contends that the phrase “shall inform” means that a
registrant has a duty to ensure that the police actually receive the change-of-
address form. Defendant, however, insists that a timely mailing is sufficient
In construing a statute, “ ‘we strive to ascertain and effectuate the
Legislature’s intent.’ [Citations.] Because statutory language ‘generally
provide[s] the most reliable indicator’ of that intent [citations], we turn to the
words themselves, giving them their ‘usual and ordinary meanings’ and construing
them in context . . . .” (People v. Castenada (2000) 23 Cal.4th 743, 746-747.) “If
the language contains no ambiguity, we presume the Legislature meant what it
said, and the plain meaning of the statute governs.” (People v. Robles (2000) 23
Cal.4th 1106, 1111.) If, however, the statutory language is susceptible of more
than one reasonable construction, we can look to legislative history (ibid.) and to
rules or maxims of construction (Mejia v. Reed (2003) 31 Cal.4th 657, 663).
“Finally, the court may consider the impact of an interpretation on public policy,
for ‘[w]here uncertainty exists consideration should be given to the consequences
(Fn. continued from previous page)
new address.” Health and Safety Code section 11590, subdivision (a), requires
specified convicted drug offenders to register; Health and Safety Code section
11594 then provides that if a registrant changes his or her residence, “he or she
shall inform, in writing within 10 days, the law enforcement agency with whom he
or she last registered of his or her new address.”
that will flow from a particular interpretation.’ ” (Ibid., quoting Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
Because both parties have advanced reasonable interpretations of section
290, subdivision (f)(1), and no legislative history illumines the matter, our
decision in People v. Franklin (1999) 20 Cal.4th 249 (Franklin) is apposite. There
we construed an earlier version of section 290 that required a sex offender “ ‘while
residing in California, . . . to register . . . within 14 days of coming into any county
[or] city . . . in which he . . . temporarily resides or is domiciled for that length of
time.’ ” (Franklin, at p. 251, quoting former § 290, subd. (a)(1), italics added.)
The issue was whether a defendant who moved from California to Texas had to
notify California authorities of his change of residence. The Court of Appeal held
that the statutory phrase “while residing in California” applied to a person moving
from California to another state.
We reversed the Court of Appeal’s judgment, explaining: “We disagree
with the Court of Appeal’s overly technical analysis. Initially, we note that failure
to comply with California’s sex offender registration law constitutes a penal
offense. . . . That being so, the statute must be construed as favorably to the
defendant as its language and the circumstances of its application reasonably may
permit. [Citations.] [¶] This principle of favorable construction is especially
apposite to registration statutes, which, to assure effective compliance, must give
clear notice to all registrants of their responsibilities so that laypersons such as
defendant can readily understand and properly discharge them.” (Franklin, supra,
20 Cal.4th at p. 253, fn. omitted.)
Our opinion in Franklin continued: “[G]iven the limited application of
section 290, former subdivision (a)(1), to offenders ‘while residing in California,’
its provisions were at least ambiguous regarding their application to persons, such
as defendant, who move to another state. Certainly, a layperson such as defendant
could reasonably assume that the 1995 version of the act did not apply to him once
he left California. Accordingly, we must apply the rule, discussed above, that any
statutory ambiguities in a penal law ordinarily should be construed in the
defendant’s favor.” (Franklin, supra, 20 Cal.4th at p. 255.)3
Following the reasoning of Franklin, which requires that registrants be
given “clear notice” of their responsibilities, we inquire whether section 290,
subdivision (f)(1) gave defendant “clear notice” that he had a duty to ensure that
the police received a change-of-address notice within the five-day statutory period.
The Attorney General argues that subdivision (f)(1) gives clear notice because it
states that the registrant “shall inform” the police of his change of address, and
“inform” implies that the police actually received the notice. We do not agree.
Registrants would understand that they must use a form of written communication
that is reasonably reliable. Mailing, however, is generally a reliable form of
notice. Numerous statutes permit notice by mail. Evidence Code section 641
establishes a rebuttable presumption: “A letter correctly addressed and properly
mailed is presumed to have been received in the ordinary course of mail.” This
enactment demonstrates the Legislature’s belief that ordinarily mailing is a reliable
method of notifying the addressee.
Some statutes require more. Section 290, subdivision (a)(1)(A), for
example, requires a sex offender to register personally with the chief of police of
the city of residence. Subdivision (a)(1)(C) requires personal reregistration
The pertinence of Franklin is not diminished by a later decision in People
v. Avery (2002) 27 Cal.4th 49, 58, where we said: “[A]lthough true ambiguities
are resolved in a defendant’s favor, an appellate court should not strain to interpret
a penal statute in defendant’s favor if it can fairly discern a contrary legislative
intent.” No contrary legislative intent could be discerned either here or in
annually. Subdivision (f)(3) requires a registrant who changes his or her name
personally notify the law enforcement agency. Many other statutes expressly
require certified mail. (See, e.g., § 246.1 [notice to owner of impounded vehicle];
§ 626.2 [notice to college student of suspension or dismissal – certified or
registered mail]; § 646.92 [notice to victim that person convicted of domestic
violence has been released].)
No such requirements appear in section 290, subdivision (f)(1). The only
requirement there is that the notice be in writing, which precludes telephone notice
but not use of regular mail. Thus the registrant is not clearly informed that he
must employ some method of delivery that will ensure that the notice is actually
received by the law enforcement agency.
The Attorney General’s theory that a defendant has not informed the police
of his change of address until the police actually receive the change-of-address
notice would largely nullify the Legislature’s decision to give registrants five
working days to notify the police. (See Wright v. Superior Court (1997) 15
Cal.4th 521, 530.) If the act of “informing” the police is not complete until the
police receive the change-of-address notice, the registrant would have to use a
method of delivery that would guarantee delivery within the five days. Indeed, the
registrant would have to choose a method that would insure that the notice would
be delivered to the police early in that five-day period, so that the registrant has
time to learn whether the notice was received and, if it was not received, to send a
second notice in time for it to be delivered within the five-day period. These
strictures exclude delivery by any form of mail.
The Attorney General suggests that a registered sex offender could send the
notice to the police by mail with a return receipt. It is doubtful, however, that this
method would allow a defendant to learn of nondelivery and send a second notice
in time for it to be received within the statutory five-day period. The Attorney
General also suggests that a registrant sending a notice by ordinary mail telephone
the police to learn if they received it. But by the time the registrant learned that
his notice was not going to be delivered in the regular course of mail, insufficient
time might remain for sending a second written communication that would arrive
within the statutory period. Finally, the Attorney General suggests sending the
notice by fax or e-mail, if the defendant is able to use those methods and the law
enforcement agency is willing to accept notification in that form. But none of
these methods of transmitting a change-of-address notice is mentioned in the
statute itself. The language of the statute itself is insufficient to warn the registrant
that he must resort to such special methods of delivery in order to avoid
committing a felony.
We appreciate the Attorney General’s concern that if we interpret
subdivision (f)(1) to require only the mailing of notice within five days, a
defendant who deliberately failed to send any notice might attempt to forestall his
conviction by falsely claiming the notice was lost in the mail. But the statutory
construction the Attorney General proposes – requiring the registrant to monitor
the communication to make certain that it is received within the five-day period –
is, for the reasons we have stated, neither fair nor workable. A better approach,
we think, would be for the Legislature to amend the statute to provide “clear
notice” (Franklin, supra, 20 Cal.4th at p. 253, italics omitted) that the registrant
should use some method of mailing or electronic communication that (a) provides
written proof of transmission and (b) will advise the registrant if the
communication is not received.
We conclude that under section 290, subdivision (f)(1), a registered sex
offender who mails a change-of-address notice to the police within five working
days has fulfilled his statutory obligation. The statute does not give “clear notice”
(Franklin, supra, 20 Cal.4th at p. 253) that the registrant has a duty to see that the
notification is actually received by the police, and therefore cannot be construed to
impose such an obligation. The trial court thus erred in instructing the jury that
defendant had an obligation to see that his change-of-address notice was received
by the police department.
Under the circumstances of this case, the trial court’s instructional error
was prejudicial. Defendant’s only defense was that he had mailed the notice, but
the court’s erroneous instruction, responding to questions from a deadlocked jury,
told the jurors that timely mailing was not a defense to the charge. After resuming
deliberations, it took the jury only 20 minutes to transform a seven-to-five
deadlock into a unanimous guilty verdict. As Justice Perluss observed in his
dissenting opinion below, even though the evidence could justify the jury’s
disbelief of defendant’s claim to have mailed a change-of-address notice to the
Long Beach Police Department, it “blinks reality to deny that the erroneous
instruction was the key to resolving the jury’s impasse.”
In arguing that any error was harmless, the Attorney General contends that
only Jurors 7 and 11 asked questions that suggested they were confused about the
statutory notification requirement, from which he infers that the other 10 jurors
had no doubts. This inference is unreasonable; the silent jurors may have had the
same doubts in mind, but found them resolved by the trial court’s response to the
questions asked by Jurors 7 and 11. The Attorney General also notes that Juror
No. 7 said one juror thought the defendant had sent a change-of-address notice but
that defendant would still be guilty if it was not received. From this statement the
Attorney General infers that 11 jurors did not believe defendant had mailed a
change-of-address notice. Again the inference is unreasonable; some jurors may
have believed the card was sent and that defendant was innocent. This kind of
speculation on the views of individual jurors is not fruitful, and overlooks that the
jury was split 7-5, not 10-2 or 11-1.
The Attorney General also argues that the trial court’s response to a
question by Juror No. 11 cured any prejudice arising from the court’s erroneous
instruction that defendant must prove that the police actually received his change-
of-address notice. As we noted earlier (ante, p. 3), when the court told the jury
that defendant had the burden of showing that the police actually received the
change-of-address notice, Juror No. 11 inquired: “If this is his obligation, then
why does ‘willful’ have anything to do with it?” The court replied, “Because it
goes to knowledge of the obligation.” The Attorney General theorizes that the
jury would realize from the court’s comment that defendant could not be convicted
unless he knew he had an obligation to ensure that his change-of-address notice
was actually received by the police, and willfully failed to carry out that duty.
But the Attorney General’s theory presupposes that section 290,
subdivision (f)(1), imposed a duty on defendant to ensure that his change-of-
address notice was received by the police, leaving it to the jury to decide whether
defendant willfully violated that duty. Section II of this opinion, however, holds
that subdivision (f)(1) does not impose such a duty. Thus if defendant mailed the
notice within the statutory five-day period he is innocent regardless of whether he
mistakenly thought he had a duty to make sure the police received his notice, and
willfully failed to do so.
Defendant contends that California lacked jurisdiction to try him for a
violation of section 290. We address this issue because a want of jurisdiction,
unlike the trial court’s instructional error discussed earlier, would preclude retrial
of the charges.
Defendant’s theory is that California has a general policy of applying its
penal law only to crimes committed within the state, and that under this policy
Penal Code section 290 was intended only to apply to California residents. (See
Franklin, supra, 20 Cal.4th at p. 255; id. at p. 259 (dis. opn. of Brown, J.).) He
does not contend that for California to apply section 290 to him would violate the
United States Constitution.
Section 290, subdivision (f)(1), gives the registrant five working days after
changing his residence in which to inform the police of his move; here the five-
day period elapsed when defendant was in Colorado. But that fact does not bar
application of California penal law.
Defendant’s obligation to notify the police of his change of address was
created by his conduct in California – the commission of crimes requiring
registration as a sex offender. He cannot escape that obligation by moving to
another jurisdiction. The case is conceptually no different than one of a California
resident who moves to another state but retains an obligation to pay tax on
California income (see Rev. & Tax Code, § 17041, subd. (b)), or to pay child
support ordered by a California court (People v. Jones (1967) 257 Cal.App.2d
235). Persons who incur a legal obligation in California cannot escape
prosecution for failure to perform that obligation on the ground that they are no
longer California residents when performance is due.
The judgment of the Court of Appeal is reversed.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Smith
Unpublished OpinionXXX NP opn. filed 6/18/02 - 2d Dist., Div. 7
Date Filed: March 29, 2004
County: Los Angeles
Judge: Arthur H. Jean, Jr.
Attorneys for Appellant:Tracy J. Dresner, under appointment by the Supreme Court, and Mark Ankcorn, under appointment by the
Court of Appeal, for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Donald E. De Nicola, Marc
J. Nolan, Daniel Rogers and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Tracy J. Dressner
3115 Foothill Blvd., #M-172
La Crescenta, CA 91214
Steven E. Mercer
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Plaintiff and Respondent)|
Represented by Marc J. Nolan
Office of Attorney General
300 S Spring Street, 5th Floor
Los Angeles, CA
|2||Smith, David Woodrow (Defendant and Appellant)|
Represented by Tracy J. Dressner
Attorney at Law
3115 Foothill Blvd #M-172
La Crescenta, CA
|Mar 29 2004||Opinion: Reversed|
|Jul 9 2002||Request for publication filed (initial case entry)|
by counsel for resp (The People). CA 2/7 recommends against
|Jul 29 2002||Petition for review filed|
appellant David Woodrow Smith
|Jul 30 2002||Received Court of Appeal record|
|Sep 18 2002||Petition for Review Granted (criminal case)|
George, C.J., and Baxter, J., were absent and did not participate. Votes: Kennard, Werdegar, Chin, Brown and Moreno, JJ.
|Oct 17 2002||Counsel appointment order filed|
Tracy Dressner 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 thirty (30) days from the date of this order.
|Nov 18 2002||Request for extension of time filed|
counsel for appellant requests an extension to December 18, 2002 to file the appellant's opening brief on the merits.
|Nov 19 2002||Extension of time granted|
Appellant's time to serve and file the brief on the merits is extended to and including December 18, 2002.
|Dec 16 2002||Request for extension of time filed|
by counsel for appellant (D. Smith) requesting an extension to January 18, 2003, to file the appellant's reply brief on the merits.
|Dec 19 2002||Extension of time granted|
Appellant's time to serve and file the brief on the merits is extended to and including January 21, 2003.
|Jan 17 2003||Request for extension of time filed|
counsel for appellant requests extension to February 20, 2003 to file the opening brief on the merits.
|Jan 21 2003||Extension of time granted|
Appellant's time to serve and file the opening brief on the merits is extended to and including February 20, 2003.
|Feb 18 2003||Request for extension of time filed|
counsel for appellant (D. Smith) requests extension to March 24, 2003 to file the appellant's opening brief on the merits.
|Feb 19 2003||Extension of time granted|
Appellant's time to serve and file the appellant's opening brief is extended to and including March 24, 2003.
|Mar 25 2003||Opening brief on the merits filed|
by counsel for appellant (D. Smith) (40k) Certified Mail
|Mar 28 2003||Received:|
counsel for appellant Certif. of Compl. Word Count
|Apr 16 2003||Request for extension of time filed|
to file resp's. brief asking to May 23, 2003
|Apr 18 2003||Extension of time granted|
Respondent's time to serve and file the respondent's brief on the merits is extended to and including May 23, 2003.
|May 15 2003||Request for extension of time filed|
to file respndent's answer brief/meritis to June 2, 2003.
|May 21 2003||Extension of time granted|
Respondent's time to serve and file the answer brief on the merits is extended to and including June 2, 2003.
|Jun 2 2003||Answer brief on the merits filed|
respondent. The People
|Jun 20 2003||Reply brief filed (case fully briefed)|
by counsel for appellant
|Nov 25 2003||Case ordered on calendar|
1-6-04, 9am, S.F.
|Jan 6 2004||Cause argued and submitted|
|Mar 29 2004||Opinion filed: Judgment reversed|
OPINION BY: Kennard, J. ---- joined by: George, C. J., Baxter, Werdegar, Chin, Brown, Moreno, JJ.
|Apr 28 2004||Compensation awarded counsel|
|Apr 29 2004||Remittitur issued (criminal case)|
|May 10 2004||Received:|
receipt for remittitur from CA 2/7
|Mar 25 2003||Opening brief on the merits filed|
|Jun 2 2003||Answer brief on the merits filed|
|Jun 20 2003||Reply brief filed (case fully briefed)|