IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S120677
v.
Ct.App.
1/2
A099674
JOSEPH KENNETH SORDEN,
San
Mateo
County
Defendant and Appellant.
Super. Ct. No. SC050781
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).) In
People v. Barker (2004) 34 Cal.4th 345 (Barker), we held the willfulness element
of the offense may not be negated by evidence the defendant “just forgot” to
register. (Id. at p. 358.) We reserved judgment “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.” (Id. at p. 358.) This case presents the question whether forgetting to
update one’s registration because of severe depression may negate the section 290
willfulness requirement.
The Attorney General contends willful failure to update one’s registration
as a sex offender is a general intent crime, and, therefore, evidence that defendant
forgot to update his registration due to depression was inadmissible under
1
Subsequent statutory references are to the Penal Code.
1
section 28, subdivision (a).2 Defendant responds that the due process right to
present a defense trumps section 28 in the circumstances of this case.
We need not address section 28 or its constitutionality to resolve this case.
All we need do is construe section 290. We have been mindful of due process
considerations in interpreting section 290. In People v. Garcia (2001) 25 Cal.4th
744 (Garcia), we held that the willfulness element of a section 290 violation
requires actual knowledge of the duty to register. We now hold that the
willfulness element of the offense may be negated by evidence that an involuntary
condition—physical or mental, temporary or permanent—deprived a defendant of
actual knowledge of his or her duty to register. Only the most disabling of
conditions, we emphasize, would qualify under the standard we announce today.
Severe Alzheimer’s disease is one example that comes to mind; general amnesia
induced by severe trauma is another. Defendant’s claimed depression clearly did
not satisfy this standard. Defendant knew of his obligation to register and, had he
taken it to heart, he could have managed to discharge it.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant is a registered sex offender, and so must update his registration
within five working days of his birthday. (§ 290, subd. (a)(1)(D).) Defendant’s
birthday is December 6; in 2001, he did not update his registration until December
22. He voluntarily came to the Pacifica police station to do so. According to the
officer who interviewed him, defendant said “he had simply forgotten to.”
Defendant added he had “gotten up that morning, realized he hadn’t registered and
that he needed to do so.”
2
Section 28, subdivision (a) provides: “Evidence of mental disease, mental
defect, or mental disorder shall not be admitted to show or negate the capacity to
form any mental state, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused
committed the act. Evidence of mental disease, mental defect, or mental disorder
is admissible solely on the issue of whether or not the accused actually formed a
required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.”
2
While defendant claims to have forgotten to register on this occasion, there
is no question but that he was ordinarily well aware of his obligation. He had
complied with it on numerous occasions in the past. He was, he testified,
“stunned” he had forgotten to update his registration this time. “It was something
I don’t usually forget at all. I’m constantly reminded of it every day.” Indeed,
defendant asserted he would “never forget” the day he was first required to
register as a sex offender.
The indelibility of that day for defendant is apparently attributable to the
fact that this lifetime obligation has never ceased to chafe him. In 1988, in signing
an acknowledgment that he had been notified of the sex offender registration
requirements, he wrote he was doing so “under duress.” In 1999, in initialing the
registration form’s 16 statements advising him of his various obligations,
including his obligation to update his registration “within 5 working days of my
birthday,” defendant complained: “Registering is having a negative effect on me.
It’s not fair to be classified as such a sex freak for an isolated incident [his
conviction for rape in 1983].” Defendant renewed this complaint in signing the
registration form some months before this incident.
At trial, defendant testified he forgot to update his registration because he
was “in a pretty depressed state due to many issues.” His counsel asked him,
“What were those issues?” However, the prosecutor’s objection on grounds of
relevancy was sustained. Earlier, the court had foreclosed this line of inquiry by
granting the prosecutor’s motion in limine; the ground of the ruling was that
failure to update one’s sex offender registration is a general intent crime.
According to defendant’s proffers of evidence, friends of his were prepared
to testify he was depressed because (1) his mother had cancer; (2) the mother of
his son, in order to terminate his visitation rights, had falsely accused him of being
abusive to the boy; (3) he had broken up with his girlfriend; and (4) his dog had
died. In his argument opposing the motion in limine, defense counsel said the
testimony of defendant’s friends, as to “what he was going through at the time,”
3
would lay the foundation for an expert witness who would testify (1) that
defendant was “showing signs of clinical depression,” and (2) how depression
affects “concentration and memory.”
Finding defendant guilty of willfully failing to update his registration
(§ 290, subd. (g)(2)), the court suspended imposition of sentence and granted
defendant probation for three years, subject to, among others, the condition that he
pay a restitution fine of $200 (§ 1202.4), and that he serve 90 days in the county
jail with credit for time served.
The Court of Appeal reversed. “We agree with [defendant] that genuinely
forgetting to register negates the element of willfulness required in section 290,
and therefore, the trial court erred in refusing to admit testimony that [defendant]
failed to remember to register.”
We reverse the judgment of the Court of Appeal, and we remand the cause
for further proceedings consistent with the views expressed herein.
DISCUSSION
Again, in Garcia, supra, 25 Cal.4th 744, we held that a violation of section
290 requires actual knowledge of the duty to register. “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
4
of the duty to register. A jury may infer knowledge from notice, but notice alone
does not necessarily satisfy the willfulness requirement.” (Garcia, at p. 752.)
We further held in Garcia that as construed to require actual knowledge of
one’s duty to register, section 290 satisfies due process. “The actual knowledge
test satisfies constitutional requirements. The high court has held that due process
principles forbid applying the proscriptions of a registration act to one having ‘no
actual knowledge of his duty to register, and where no showing is made of the
probability of such knowledge.’ (Lambert v. California (1957) 355 U.S. 225, 227
(Lambert).) . . . [¶] Assuming Lambert controls here (but see U.S. v. Kafka (9th
Cir. 2000) 222 F.3d 1129, 1132-1133 [Lambert does not apply where the
circumstances, including any notice expressly or impliedly provided by the
criminal statute, should have alerted defendant to the registration requirement];
U.S. v. Meade (1st Cir. 1999) 175 F.3d 215, 226 [same]), it merely established that
a defendant cannot be convicted of violating a registration act without at least
‘proof of the probability of’ knowledge of the duty to register. (Lambert, supra,
355 U.S. at p. 229.) By making actual knowledge of the duty to register an
element of a section 290 violation, we undoubtedly meet any due process
limitations imposed by Lambert.” (Garcia, supra, 25 Cal.4th at pp. 752-753.)
In People v. Atkins (2001) 25 Cal.4th 76, we rejected the argument that
exclusion of evidence, under section 22, 3 of the defendant’s voluntary
intoxication “violate[d] his due process rights by denying him the opportunity to
3
Section 22 provides in relevant part: “(a) No act committed by a person
while in a state of voluntary intoxication is less criminal by reason of his or her
having been in that condition. Evidence of voluntary intoxication shall not be
admitted to negate the capacity to form any mental states for the crimes charged,
including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act.
“(b) Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent, or, when
charged with murder, whether the defendant premeditated, deliberated, or
harbored express malice aforethought.”
5
prove he did not possess the required mental state (Montana v. Egelhoff (1996)
518 U.S. 37, 39-40, 56.)” (Atkins, at p. 93.)
We recognize, of course, that depression, unlike drunkenness, is not a
voluntary condition. And we realize a person may suffer from an involuntary
condition so disabling as to rob him of knowledge of his registration obligations
under section 290. Therefore, in order to avoid any due process problems, we
hold that a defendant charged with violation of section 290 may present substantial
evidence that, because of an involuntary condition—temporary or permanent,
physical or mental—he lacked actual knowledge of his duty to register.
Defendant did not proffer such evidence. There is no question but that he
knew of his duty to register. He simply claimed his depression made it more
difficult for him to remember to register. However, life is difficult for everyone.
As a society, we have become increasingly aware of how many of our fellow
citizens must cope with significant physical and mental disabilities. But cope they
do, as best they can, for cope they must. So, too, must defendant and other sex
offenders learn to cope by taking the necessary measures to remind themselves to
discharge their legally mandated registration requirements. It is simply not
enough for a defendant to assert a selective impairment that conveniently affects
his memory as to registering, but otherwise leaves him largely functional.
The public policy underlying section 290 supports this conclusion. In
Barker, supra, 34 Cal.4th 345, we explained that countenancing the excuse that a
defendant just forgot to register “ ‘would effectively “eviscerate” ’ ” section 290.
(Barker, at p. 358.)
“ ‘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 [v. Superior Court (1997)] 15 Cal.4th [521,] 527; People
v. McClellan (1993) 6 Cal.4th 367, 376, fn. 7.) ‘Plainly, the Legislature perceives
6
that sex offenders 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, subdivision (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.)” (Barker, supra, 34 Cal.4th at p. 357.)
Just as it would effectively eviscerate the statute to permit sex offenders to
escape the consequences of failing to register on the ground they simply forgot to
do so (Barker, supra, 34 Cal.4th at p. 358), so, too, would it effectively eviscerate
the statute to countenance as an excuse a condition that falls short of nullifying
knowledge of one’s registration obligations. As for defendant’s claimed
depression, according to one study, most convicted sex offenders have mood
disorders, and nearly a quarter of them suffer from major depression.4 Indeed,
defendant claimed the very act of registering had a “negative effect” on him.
Finally, defendant contends it was for a jury, not the trial judge, to decide
whether his depression deprived him of actual knowledge of his duty to register.
4
McElroy et al., Psychiatric Features of 36 Men Convicted of Sexual
Offenses (June 1999) 60 J. Clinical Psychiatry 414, 417, table 2.
7
We disagree. The question whether a defendant has proffered evidence
sufficiently substantial to go to the jury under the standard we announce today is a
question confided to the sound discretion of the trial court. For the reasons given,
we find no abuse of discretion here.
DISPOSITION
The judgment of the Court of Appeal is reversed and the cause remanded
for further proceedings consistent with the views expressed herein.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
BAXTER,
J.
CHIN,
J.
8
CONCURRING OPINION BY KENNARD, J.
A person convicted of specified sex offenses must register with law
enforcement officials and update the registration within five working days of the
person’s birthday; “willful” failure to comply is a felony. (Pen. Code, § 290.) In
People v. Barker (2004) 34 Cal.4th 345 (Barker), this court held that forgetting to
update the registration constitutes willfully failing to register within the meaning
of section 290. I dissented. I explained: “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.” (Barker, supra, 34 Cal.4th at p. 366 (dis. opn. of Kennard, J.).)
Left open in Barker was the question 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.”
(Barker, supra, 34 Cal.4th at p. 358, fn. omitted.) The majority’s response today
is that “the willfulness element of the offense may be negated by evidence that an
involuntary condition—physical or mental, temporary or permanent—deprived a
defendant of actual knowledge of his or her duty to register.” (Maj. opn., ante, at
p. 2.) The majority notes that “[o]nly the most disabling of conditions” would
qualify under this standard; as examples, it cites “[s]evere Alzheimer’s disease”
and “general amnesia induced by severe trauma.” (Ibid.)
Applying that definition to the facts of this case, the majority concludes that
defendant’s proffered evidence, which would have shown that he forgot to update
1
his registration because he was suffering from depression, would not have
demonstrated that he lacked actual knowledge of his duty to register, but would
have shown only that he forgot to register. Thus, it holds, the trial court properly
excluded this evidence. (Maj. opn., ante, at pp. 7-8.)
As I understand the majority opinion, it draws a distinction between two
groups of defendants suffering from a mental disease or disorder: (1) defendants
who have “forgotten” the duty to register and cannot currently bring it to mind, but
who still retain a subconscious knowledge such that, when reminded, they
remember that they had a duty to register; and (2) defendants who, because of an
involuntary physical or mental condition, no longer have a subconscious memory
of the duty to register and, when reminded of that duty, would not remember it but
must learn it anew. It is a dauntingly difficult distinction to apply, and one that
depends upon concepts of retained subconscious memory that may or may not be
scientifically valid. But, as the majority explains, this line must nevertheless be
drawn “to avoid any due process problems.” (Maj. opn., ante, at p. 6.)
I adhere to the view that the majority was wrong in Barker, supra, 34
Cal.4th 345, for equating forgetfulness with willfulness. Had my view prevailed,
there would have been no need to draw the difficult distinction I just discussed,
because neither of the two groups of defendants mentioned would come within the
ambit of Penal Code section 290. But the majority’s holding in Barker is now the
law, and the distinction that the majority in this case has drawn may be the best
way in which to reconcile Barker’s holding with the due process concerns noted
by the majority.
KENNARD,
J.
2
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
This case, as the majority states, presents the question whether forgetting to
update one’s registration “because of severe depression” may negate the Penal
Code section 290 (section 290) willfulness requirement. (Maj. opn., ante, at p. 1.)
Without directly answering the stated question, the majority holds that “the
willfulness element of the offense [of failure to register] may be negated by
evidence that an involuntary condition—physical or mental, temporary or
permanent—deprived a defendant of actual knowledge of his or her duty to
register.” (Id. at p. 2.) I agree. The majority further holds that “[o]nly the most
disabling of conditions . . . would qualify under the standard [it] announces
today.” (Ibid.) As an abstract principle, I agree. Certainly the condition must be
sufficiently disabling so as to deprive the afflicted individual of his or her
awareness or knowledge of the duty to register.
The majority, however, goes further. In an ipse dixit resolving the factual
issue defendant never had the opportunity in the trial court to address, the majority
declares: “Defendant’s claimed depression clearly did not satisfy this standard.
Defendant knew of his obligation to register and, had he taken it to heart, he could
have managed to discharge it.” (Maj. opn., ante, at p. 2, italics added.) It is here I
part company with the majority. I disagree that this court, in the circumstances of
this case, where the trial court precluded defendant from presenting his proffered
evidence of severe depression, can as a matter of law declare that defendant
“knew” of his obligation to register. Rather, I agree with the Court of Appeal that
the trial court abused its discretion in refusing to consider defendant’s proffer of
1
evidence that he suffered from a clinical depression1 that caused him to fail to
remember to register. Although, as the majority states, the question whether a
defendant has proffered evidence sufficiently substantial to go to the jury under
the standard the court announces today is a question confided to the sound
discretion of the trial court (maj. opn., ante, at p. 8), here, contrary to the majority,
the trial court did not exercise an informed discretion, evidently rejecting
defendant’s proffer, instead, in the mistaken belief that evidence of mental
impairment was legally irrelevant to the question of a defendant’s knowledge of
the duty to register.
I
Section 290 requires persons convicted of enumerated sex crimes to register
with appropriate law enforcement authorities. Subdivision (g)(2) of section 290
provides in pertinent part that “any person who is required to register under this
1
“Major depression is the most common of the mood disorders. The key
diagnostic criterion for major depressive disorder is the presence of a major
depressive episode.
“There are nine symptoms that define a major depressive episode. Of the
nine, at least five must have been present during a 2-week period. They must
represent a change from previous functioning and they must cause significant
impairment in daily functioning. At least one of the five symptoms must be either
the first or the second symptom in the following list:
“1. Depressed mood most of the day, nearly every day.
“2. Reduced interest or pleasure in all or almost all activities.
“3. Significant weight loss or weight gain, or a significant decrease or
increase in appetite.
“4. Trouble sleeping or sleeping too much.
“5. Psychomotor agitation or retardation.
“6. Fatigue or loss of energy.
“7. Feeling worthless or guilty in an excessive or inappropriate manner.
“8. Problems in thinking, concentrating, or making decisions.
“9. Recurrent thoughts of death, suicidal ideation, specific suicidal plan, or
a suicide attempt.” (1 Encyclopedia of Mental Health (Academic Press 1998) pp.
735-736.)
2
section based on a felony conviction who willfully violates any requirement of this
section . . . is guilty of a felony.” (Italics added.) Almost 50 years ago, the United
States Supreme Court held that one’s constitutional right to due process of law
requires, at a minimum, that a conviction for violating a criminal registration law
include a showing of “actual knowledge of the duty to register or proof of the
probability of such knowledge.” (Lambert v. California (1958) 355 U.S. 225, 229,
italics added.)
We addressed the meaning of the term “willfully,” as used in section 290,
in People v. Garcia (2001) 25 Cal.4th 744 (Garcia). There we held that, in cases
charging a violation of section 290, the jury must be instructed the word
“willfully” requires that the accused have had actual knowledge of his duty to
register. Subsequently, in People v. Barker (2004) 34 Cal.4th 345 (Barker), we
held that merely forgetting to register was not a defense to the crime of willfully
failing to register. Barker specifically reserved judgment, however, on whether
“an acute psychological condition, or a chronic deficit of memory or intelligence
might negate the willfulness required for a section 290 violation.” (Id. at p. 358.)
The law requires that persons convicted of certain enumerated sex crimes
be informed, upon release from confinement, of their duty to register (§ 290, subd.
(b)(1)) and sign a form indicating they have been so informed (ibid.). At the
outset, then, we assume all persons required to register had, at least at one time,
the knowledge of their duty to do so. It is not, however, this preliminary
knowledge that is relevant here. The crime defined in section 290 is the willful
failure to register or reregister at any one of the numerous times set out in the
statute. “The word ‘willfully’ implies a ‘purpose or willingness’ to make the
omission. [Citation.] Logically one cannot purposefully fail to perform an act
without knowing what act is required to be performed.” (Garcia, supra, 25
Cal.4th at p. 752, quoted with approval in Barker, supra, 34 Cal.4th at p. 351.) It
3
is thus the offender’s knowledge or awareness of the duty at the time he or she
fails to register that is relevant.
Although “just forgetting” one’s duty to register does not negate such
knowledge (Barker, supra, 34 Cal.4th at p. 361), the majority accepts the
proposition that certain psychological conditions can render a person unable to
recall the legal duty to register. “Severe Alzheimer’s disease is one example that
comes to mind; general amnesia induced by severe trauma is another.” (Maj. opn.,
ante, at p. 2.) Because sex offenders are told on release from prison of their legal
duty to register, a trier of fact may infer that, in the normal case, when an offender
fails to register, he or she did so with knowledge of the duty, rendering the
offender’s omission a willful one. “A jury may infer knowledge from notice, but
notice alone does not necessarily satisfy the willfulness requirement.” (Garcia,
supra, 25 Cal.4th at p. 752.) Evidence of a qualifying mental illness is thus
relevant to rebut the inference of knowledge.
II
Defendant proposed to present both lay and expert evidence that he suffered
from severe depression. Thus, he offered the testimony of lay witnesses who
would have testified that he was a friendly, hard-working, “happy-go-lucky”
person who was involved in his community. In the months leading up to his
failure to register in December 2001, however, he appeared depressed, unfocused
and withdrawn. He had been financially unable to retain possession of his home
of several years and had moved first into a friend’s garage and then to a new
residence in Pacifica. His mother, with whom he was very close, had been
battling cancer for the previous two years and had recently been diagnosed with a
rapidly spreading form of the disease. During this time, defendant had been flying
back and forth to New York to be with his mother. During this same period,
defendant’s girlfriend decided to end their relationship, and the mother of his son
4
was being uncooperative in permitting visitation. In addition, defendant’s constant
companion for the previous 14 years, his pet German shepherd, Ruby, died in
November 2001. A friend would have testified that the dog’s death had a
“devastating effect” on defendant. More than one witness would have testified
that, during this period, defendant lost a lot of weight and appeared forgetful.
In opposing the prosecution’s motion in limine to exclude his proffered
evidence, defense counsel asserted he would call an expert witness (Dr. Weiner)
who, if permitted, would testify that defendant showed signs of clinical depression
and that such depression affected defendant’s concentration and memory.
In finding defendant’s proffered evidence was properly excluded, the
majority dismisses the seriousness of his potential illness, characterizing his
problem as one merely of lack of effort. For example, the majority asserts that
defendant “simply claimed his depression made it more difficult for him to
remember to register.” (See maj. opn., ante, at p. 6.) Defendant and others with
mental disabilities, says the majority, must cope “as best they can.” (Ibid.) The
majority thus implies that unlike persons suffering from amnesia or Alzheimer’s
disease who cannot remember their legal duty to register no matter how hard they
try, one suffering a major depressive episode can remember if he or she simply
tries harder to do so. The majority cites no authority in support of this suggestion.
Indeed, the opposite appears to be true. According to the National Institute of
Mental Health, “[a] depressive disorder is an illness that involves the body, mood,
and thoughts. It affects the way a person eats and sleeps, the way one feels about
oneself, and the way one thinks about things. A depressive disorder is not the
same as a passing blue mood. It is not a sign of personal weakness or a condition
that can be willed or wished away. People with a depressive illness cannot merely
‘pull themselves together’ and get better. Without treatment, symptoms can last
5
for weeks, months, or years.” (http://www.nimh.nih.gov/publicat/depression.cfm
[as of June 23, 2005], italics added.)
The prevailing diagnostic tool for mental disorders explains that “[m]any
individuals [suffering from a major depressive episode] report impaired ability to
think, concentrate, or make decisions. [Citation.] They may appear easily
distracted or complain of memory difficulties.” (Diagnostic and Statistical Manual
of Mental Disorders (4th ed. 2000) p. 350 (DSM-IV-TR), italics added.)
Defendant’s proffered evidence of his depressive mood and unfocused affect, his
sudden weight loss and diminution of energy were all consistent with known
symptoms of depression. (1 Encyclopedia of Mental Health, supra, at pp. 735-
736; DSM-IV-TR, supra, at p. 356.) That he experienced a series of major life
stressors during the period leading up to his failure to register is also consistent
with his having endured a major depressive episode.2
We need not now conclude the trier of fact would or would not have been
convinced by defendant’s proffered evidence. The question before us is one of
admissibility. On its face, the evidence shows defendant experienced more than a
“passing blue mood,” that he in fact suffered from serious depression at the time
he failed to register, and that sufferers of such depressive episodes often
experience significant memory deficits. I conclude this evidence, lay evidence
that in turn supported an expert medical opinion, was relevant to the question of
whether defendant’s failure to register was a willful omission as required by
section 290.
2
“External stressors and significant life changes, such as chronic medical
problems, death of a loved one, divorce or estrangement, miscarriage, or loss of a
job, also can result in a form of depression known as adjustment disorder.
Although periods of adjustment disorder usually resolve themselves, occasionally
they may evolve into a major depressive disorder.” (Health & Wellness Resource
Center, at http://infotrac.galegroup.com [as of June 23, 2005].)
6
III
The trial proceedings in this case took place on July 22, 2002, well before
our decision in Barker, supra, 34 Cal.4th 345. Although the trial court anticipated
our Barker decision by concluding that merely forgetting one’s duty to register
was not a defense, the lower court could not have anticipated that we would limit
our holding in Barker and expressly except “acute psychological conditions”
affecting memory. (Id. at p. 358.) Instead, the trial court evidently excluded
defendant’s proposed evidence of his depression on the ground the evidence was
not relevant. Because I find such evidence was relevant, I would remand this case
to the trial court to enable it to reassess the evidence’s admissibility under the
proper standard. If, in fact, defendant suffered from a serious and diagnosable
depressive disorder affecting his memory, his failure to register in this case may
not have been willful as required by section 290.
Defendant, of course, has a constitutional right to present relevant evidence
in his defense. To the extent, therefore, the majority declines to permit this
defendant to present evidence he suffered from a serious depressive disorder that
negated his knowledge of the duty to register, I dissent.
WERDEGAR, J.
I CONCUR:
MORENO, J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Sorden
__________________________________________________________________________________
Unpublished Opinion
NP opn. filed 10/31/03 – 1st Dist., Div. 2Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S120677Date Filed: June 23, 2005
__________________________________________________________________________________
Court:
SuperiorCounty: San Mateo
Judge: Phrasel L. Shelton
__________________________________________________________________________________
Attorneys for Appellant:
Kathleen Kahn and Richard Such, under appointments by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler,Assistant Attorney General, Seth K. Schalit and Jill M. Thayer, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard SuchFirst District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
(415) 495-3119
Jill M. Thayer
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5954
Date: | Docket Number: |
Thu, 06/23/2005 | S120677 |
1 | Sorden, Joseph Kenneth (Defendant and Appellant) Represented by Kathleen Kahn 1st District Appellate Proj 730 Harrison St #201 San Francisco, CA |
2 | Sorden, Joseph Kenneth (Defendant and Appellant) Represented by Matthew Zwerling 1st District Appellate Project 730 Harrison St #201 San Francisco, CA |
3 | Sorden, Joseph Kenneth (Defendant and Appellant) Represented by First District Appellate Project 730 Harrison St. Ste.201 730 Harrison St. Ste.201 San Francisco, CA |
4 | Sorden, Joseph Kenneth (Defendant and Appellant) Represented by W. Richard Such First District Appellate Project 730 Harrison Street, Suite 201 San Francisco, CA |
5 | The People (Plaintiff and Respondent) Represented by Jill M. Thayer Office of the Attorney General 455 Golden Gate Ave #11000 San Francisco, CA |
Disposition | |
Jun 23 2005 | Opinion: Reversed |
Dockets | |
Nov 24 2003 | Request for publication filed (initial case entry) By counsel for appellant {Joseph Kenneth Sorden}. |
Dec 9 2003 | Petition for review filed by AG for respondent (The People). |
Dec 9 2003 | Record requested |
Dec 23 2003 | Received Court of Appeal record One file folder and one accordion folder. |
Jan 14 2004 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
Jan 27 2004 | Counsel appointment order filed Upon request of appellant for appointment of counsel, the First District Appellate Project 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 respondent's opening brief on the merits is filed. |
Feb 10 2004 | Request for extension of time filed counsel for resps. (People) requests extension of time to March 12, 2004, to file the opening brief on the merits.. |
Feb 13 2004 | Extension of time granted On application of respondents 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 March 12, 2004. |
Mar 9 2004 | Opening brief on the merits filed By Respondent {The People}. |
Apr 6 2004 | Request for extension of time filed for aplt to file the answer brief on the merits, to May 10. |
Apr 12 2004 | Extension of time granted Appellant's time to serve and filed the answer brief on the merits is extended to and including May 10, 2004. |
May 4 2004 | Request for extension of time filed counsel for appellant requests extension of time to June 9, 2004 to file the answer brief on the merits. |
May 7 2004 | Extension of time granted Appellant's time to serve and file the answer brief on the merits is extended to and including June 9, 2004. |
Jun 10 2004 | Answer brief on the merits filed Appellant ( Sorden). |
Jun 29 2004 | Reply brief filed (case fully briefed) |
Oct 19 2004 | Letter sent requesting supplemental briefing requesting letter briefs discussing the effect of this court's recently filed opinion in People v. Barker (2004) 34 Cal.4th 345 on the issues presented by this case. The simultaneous opening letter briefs due by Nov. 8, 2004 and any response letter briefs due by Nov. 18, 2004. |
Nov 2 2004 | Supplemental brief filed Opening letter brief by counsel for appellant. |
Nov 8 2004 | Supplemental brief filed Opening letter brief by AG for respondent. |
Nov 16 2004 | Filed: Response letter brief by counsel for appellant. |
Nov 18 2004 | Filed: Response letter brief by AG for respondent. |
Feb 2 2005 | Supplemental briefing ordered The court requests that counsel for appellant Joseph Kenneth Sorden respond to the argument made by the Attorney General in his letter brief filed November 8, 2004, that appellant's proffered evidence concerning his alleged depression was inadmissible under Penal Code section 28, subdivision (a). Appellant's letter brief should be filed on or before [one week from the date of the Clerk's letter]. |
Feb 4 2005 | Request for extension of time filed counsel for aplt. requests 5-day extension of time to 2-14-2005, to file the supplemental letter brief. |
Feb 8 2005 | Extension of time granted to and including Feb. 14, 2005 to file appellant's letter brief. |
Feb 14 2005 | Supplemental brief filed letter brief filed by appellant. |
Feb 16 2005 | Filed: Errata notice from counsel for appellant re letter brief filed on 2/14/05. Provided corrected page 4. |
Apr 1 2005 | Case ordered on calendar 5/4/05 @9am, S.F. |
May 4 2005 | Cause argued and submitted |
May 9 2005 | Filed letter from: counsel for appellant dated 5/9/05. |
Jun 23 2005 | Opinion filed: Judgment reversed and remanded. Majority Opinion by Brown, J. Joined by George C.J., Baxter, Chin, JJ. Concurring opinion by Kennard, J. Concurring and dissenting opinion by Werdegar, J. - - - - - joined by Moreno, J. |
Jul 8 2005 | Rehearing petition filed and Modification of Opinion by counsel for appellant |
Jul 12 2005 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 21, 2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
Jul 27 2005 | Rehearing denied Petition for rehearing and request for modification is DENIED. Werdegar, J., is of the opinion the petition should be granted. |
Jul 27 2005 | Remittitur issued (criminal case) |
Jul 28 2005 | Received: Receipt for Remittitur |
Jul 29 2005 | Returned record to 1DCA |
Oct 26 2005 | Compensation awarded counsel Atty Such - First District Appellate Project |
Briefs | |
Mar 9 2004 | Opening brief on the merits filed |
Jun 10 2004 | Answer brief on the merits filed |
Jun 29 2004 | Reply brief filed (case fully briefed) |