SERIES 1100 SEX OFFENSES
F 1170 Failure To Register As Sex Offender (PC 290(a)(1)(A) [change in residence] & (a)(1)(D) [birthday])
TABLE OF CONTENTS
F 1170.1 Titles And Identification Of Parties
F 1170.1 Inst 1 Failure To Register As Sex Offender—Title
F 1170.1 Inst 2 Identification Of Prosecution And Defendant
F 1170.2 Failure To Register As Sex Offender—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1170.3 Failure To Register As Sex Offender—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1170.4 Failure To Register As Sex Offender—Burden Of Proof Issues
F 1170.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1170.5 Failure To Register As Sex Offender—Elements And Definitions
F 1170.5 Inst 1 Separate Enumeration Of Combined Elements
F 1170.5 Inst 2 Sex Offender Registration (PC 290): Definition Of Residence
F 1170.6 Failure To Register As Sex Offender—Defense Theories
F 1170.6 Inst 1 (a-c) Sex Offender Registration (PC 290): Knowledge Requirement—Pinpoint Instruction
F 1170.6 Inst 2 (a & b) Sex Offender Registration (PC 290): Mailing Sufficient—Pinpoint Instruction
F 1170.7 Failure To Register As Sex Offender—Preliminary Fact Issues [Reserved]
F 1170.8 Failure To Register As Sex Offender—Unanimity/Duplicity/Multiplicity [Reserved]
F 1170.9 Failure To Register As Sex Offender—Lesser Offense Issues [Reserved]
Return to Series 1100 Table of Contents.
F 1170.1 Titles And Identification Of Parties
F 1170.1 Inst 1 Failure To Register As Sex Offender—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1170.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1170.2 Failure To Register As Sex Offender—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1170.3 Failure To Register As Sex Offender—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1170.4 Failure To Register As Sex Offender—Burden Of Proof Issues
F 1170.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE See FORECITE F 400.4 Inst 1.
F 1170.5 Failure To Register As Sex Offender—Elements And Definitions
F 1170.5 Inst 1 Separate Enumeration Of Combined Elements
*Modify CC 1170, Alternatives 4A and 4B as follows [added language is underlined; deleted language is stricken]:
<Alternative 4A—change of residence>
[4. The defendant willfully :
A. Failed to register as a sex offender with the (police chief of that city/sheriff of that county/the police chief of that campus or its facilities) within five working days of (coming into/ [or] changing (his/her) residence within) that (city/county/campus).]
B. The defendant did so willfully.
<Alternative 4B—birthday>
[4. The defendant willfully :
A. Failed to annually update (his/her) registration as a sex offender with the (police chief of that city/sheriff of that county/the police chief of that campus) within five working days of (his/her) birthday.]
B. The defendant did so willfully.
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 1170.5 Inst 2 Sex Offender Registration (PC 290): Definition Of Residence
*Add to CC 1170 as follows:
As used in this instruction, the term “residence” means a dwelling place of some permanence which one keeps and to which one intends to return. A residence is not a place where one rests or shelters during a trip or a transient visit.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definition Of “Residence”—The above instruction is adapted from the instruction quoted with approval in People v. Horn (1998) 68 CA4th 408, 414. People v. McCleod (1997) 55 CA4th 1205 held that PC 290 does not require a finding that the defendant specifically intended to evade the police. McCleod also concluded that the term “residence” does not require sua sponte definition; however, in some cases it may be important to request specific definition of the term “residence” where there is a question as to exactly when the defendant changed his residence. For example, if the defendant temporarily changes his “place of abode” this may well not constitute a change of residence which triggers the notification requirement of PC 290. (See e.g., FORECITE F 1170 Note 2 [registration requirement may apply to more than one residence].) “‘Residence … denotes any factual place of abode of some permanency, that is, more than a mere temporary sojourn…. [Citations.]’” (McCleod, 55 CA4th at 1217; see also People v. Velasco DEPUBLISHED (1998) 66 CA4th 748 [defining residence as “domicile” is erroneous because defendant may have more than one residence; however, statute requires that defendant register both addresses].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 18.56a.
F 1170.6 Failure To Register As Sex Offender—Defense Theories
F 1170.6 Inst 1 (a-c) Sex Offender Registration (PC 290): Knowledge Requirement—Pinpoint Instruction
*Add to CC 1170 as follows:
Alternative a [CC 3400 Format]:
The prosecution must prove that the defendant actually knew (he/she) had a duty to register. The defendant contends (he/she) did not know that (he/she) was required to register. The defendant does not need to prove this contention, the prosecution must disprove it. If you have a reasonable doubt that the prosecution has proved any essential fact or element of the charged offense, including that the defendant actually knew (he/she) had a duty to register, you must find (him/her) not guilty.
Alternative b [CC 3400 adaption]:
The prosecution must prove that the defendant willfully failed to register as a sex offender. The defendant contends (he/she) did not willfully fail to register because (he/she) did not know about the duty to register. The prosecution must prove that the defendant knew about the duty and willfully failed to register. The defendant does not need to prove that (he/she) was unaware of the duty to register. If you have a reasonable doubt that the defendant knew about the duty to register and willfully failed to do so, you must find (him/her) not guilty.
Alternative c:
The burden is on the prosecution to prove beyond a reasonable doubt that the defendant had knowledge of [his] [her] duty to register as a sex offender.
If, after considering all the circumstances, you have a reasonable doubt that the defendant had knowledge of [his] [her] duty to register as a sex offender, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of willfully failing to register as a sex offender.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (1980) 28 C3d 143, 159; People v. Sears (1970) 2 C3d 180, 190.) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (1991) 54 C3d 1103, 1120; see also, People v. Wharton (1991) 53 C3d 522, 570; People v. Wright (1988) 45 C3d 1126, 1136-37 [pinpoint instruction proper if it is predicated upon defendant’s theory].)
[See also FORECITE F 315.1.2 Inst 2.]
Knowledge Of Duty To Register As Element—See People v. Garcia (2001) 25 C4th 744, 754; People v. Edgar (2002) 104 CA4th 210, 219 [instructions given were erroneous in that they failed to clearly state that a conviction required actual knowledge of the duty to register]; People v. Jackson (2003) 109 CA4th 1625 [court erred in failing to instruct jury that defendant’s failure to register as sex offender must be willful].
[See also FORECITE F 1170 Note 4.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 18.56c.
F 1170.6 Inst 2 (a & b) Sex Offender Registration (PC 290): Mailing Sufficient—Pinpoint Instruction
Alternative a [CC 3400 Format]:
The prosecution must prove that the defendant failed to provide a change of address notice to the police. The defendant contends (he/she) did not fail to provide the notice and that (he/she) mailed the notification when required; however, the defendant does not need to prove that (he/she) mailed the notice, the prosecution must prove that (he/she) did not mail it. If you have a reasonable doubt about whether the prosecution has proved any essential fact or element of the charge, including that the defendant failed to timely mail the required notification, you must find (him/her) not guilty.
Alternative b:
*Add to CC 1170 as follows:
A registered sex offender who mails a change-of-address notice to the police within five working days of moving has fulfilled his statutory obligation. The registrant has no duty to see that the notification is actually received by the police. Therefore, the prosecution must prove beyond a reasonable doubt that the defendant did not mail a change-of-address notice to the police within the five day period.
Any juror who has a reasonable doubt whether the prosecution has met this burden must give the defendant the benefit of that doubt and vote to acquit.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Mailing Sufficient—See People v. Smith (2004) 32 C4th 792.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 18.56e.
F 1170.7 Failure To Register As Sex Offender—Preliminary Fact Issues[Reserved]
F 1170.8 Failure To Register As Sex Offender—Unanimity/Duplicity/Multiplicity [Reserved]
F 1170.9 Failure To Register As Sex Offender—Lesser Offense Issues [Reserved]
