Brief Bank # B-896 (Re: F 18.56 n13 [Definition Of Domicile And Residence].)
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Excerpts from brief:
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
The People of the State of California,
Plaintiff and Respondent,
Case No. H000000
vs. Santa Clara County Superior
Court No. C0000000
John Doe, Jr.,
Defendant and Appellant.
____________________________________)
APPELLANT’S OPENING BRIEF
INTRODUCTION
This is an appeal from a judgment entered after a jury convicted appellant of one count of failing to register as a sex offender under Penal Code section 290, subdivisions (a)(1) & (g)(2), [Footnote 1] and found true five “strike” priors, while acquitting him on a second count of failing to notify appropriate authorities that he had moved from their jurisdiction (§ 290, subds. (f)(1) & (g)(2)). [Footnote 2] Appellant was sentenced to prison for 25 years to life under the three strikes law. (§§ 667, subds. (b)-(i); 1170.12.)
STATEMENT OF APPEALABILITY
This appeal is from a judgment which finally disposes of all issues between the parties, and is authorized by section 1237, subdivision (a).
STATEMENT OF THE CASE
Appellant was charged by amended information on July 20, 1999, [Footnote 3] with two counts of violating section 290, one in Santa Clara County and one in Monterey County, based on an alleged failure to register a change of address in April 1998. (RT 140-143.) [Footnote 4] The amended information also alleged that he had been previously convicted of five serious or violent felonies within the meaning of the three strikes law. (§§ 667, subds. (b)-(i), 1170.12.)
The case went to jury trial on August 27, 1999. (CT 267.) On August 31, after seven hours of deliberation (CT 298-299, 310), the jury returned a guilty verdict on count one and a not guilty verdict on count two; it found true the five strike priors. (CT 301-307.)
On March 21, 2000, appellant filed a motion for a new trial on numerous grounds. (4/16/01 ACT 1-13.) The motion was amended on May 8, 2000, to add allegations of mid-deliberation instructional error and claims of Brady error and newly discovered evidence, with a separate motion to dismiss based on Brady error. (Brady v. Maryland (1963) 373 U.S. 83.) (CT 321-346.) After an evidentiary hearing, the court denied the motions on July 7, 2000. (CT 370-372; 6/7/00 RT 14-52; RT 273-276.)
Appellant thereafter filed a Romero motion to strike his priors (§ 1385). (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) (CT 374-385.) That motion was denied on September 6, 2000 (CT 452; RT 278-279), and appellant was immediately sentenced to 25 years to life under the three strikes law. (CT 452-454; RT 280-281.) He filed a timely notice of appeal. (CT 455.)
STATEMENT OF THE FACTS
A. Facts relating to appellant’s arrest:
On April 13, 1998, at approximately 11:00 p.m., appellant was stopped by San Jose Police Officers Kevin McMillin and Jim Menard [Footnote 5] as he was walking on Monterey Highway, allegedly because his “gait appeared slightly unsteady.” (CT 242; RT 164.) Believing he was the victim of racial profiling [Footnote 6] (CT 181; 4/16/01 ACT 31; RT 192, 222, 230), appellant called Officer Menard a “racist Mark Fuhrman cop.” [Footnote 7] (CT 242; 4/16/01 ACT 26.) Upon running a records check, the officers discovered that appellant was a prior sex offender subject to registration under section 290. (RT 165.) According to the records check, appellant’s last registration was on March 10, 1997. (RT 165.)
However, after arresting appellant for being drunk in public (§ 647, subd. (f)), the police searched him and found a registration card dated October 23, 1997, listing his address as 0000 Anystreet in Seaside. (RT 148, 165; Exh. 1 [2/1/01ACT 2].) Upon calling the phone number at that address, Officer McMillin spoke to appellant’s father, John Doe, Sr., who told them appellant had not been living at that address for approximately six to eight months; he said he believed appellant was living and working somewhere in San Jose. (RT 166-168.) The officers apparently did not know at the time that the senior Mr. Doe had Alzheimer’s disease. (See, e.g., RT 23; petition for writ of habeas corpus.) [Footnote 8]
On the basis of his father’s statements, appellant was arrested for a violation of section 290, as well as for being drunk in public. (RT 168.) The drunk in public charge was never pursued by the state. (CT 48-51.)
B. Facts relating to appellant’s requests to withdraw his Faretta status and the circumstances under which the trial proceeded:
Appellant was initially represented by the public defender’s office, but on April 16, 1999, was granted the right to represent himself under Faretta v. California (1975) 422 U.S. 806. (4/16/99 RT 10-11.) He conducted his own defense at the preliminary examination (CT 1-46) and filed numerous pretrial motions. (CT 59-63, 67-71, 78-83, 85-92, 94-97, 99-100, 101-113, 116-120, 122-124, 127-136,137-140, 142-146, 163-166, 168-174, 177-181, 195-203, 204-207, 208-220, 221-229.) However, as trial drew nearer, appellant determined that he was not qualified to conduct his own defense at trial.
From August 13 through August 23, 1999, appellant made two motions for a continuance in order to secure retained counsel, which were denied. (8/13/99 RT 54-55; 8/23/99 RT 82; RT 6-7; CT 259.) On the afternoon of August 25, appellant announced he was “disqualifying” himself as counsel (i.e., moving to withdraw his Faretta status), and said he needed to be represented by an attorney. (RT 8, 11-12.) The motion was denied as untimely. (CT 261; RT 8-9.) The judge also said he did not “see the basis that requires that I appoint a lawyer to represent you.” (RT 9.)
On August 27, appellant filed a formal written request to withdraw his Faretta
status. (CT 262-265.) After the motion was denied as untimely (RT 27; CT 266), appellant became upset and told the judge, “Excuse me. I can’t proceed with this. Lock me in the cell. I can’t proceed. I am not even prepared for this.” (RT 27.)
The judge ordered appellant removed to a holding cell before jury selection began. (RT 28-29; CT 267; see 4/16/01 ACT 54-56.) Hence, for the entire first day of trial, appellant was absent from the courtroom and had no attorney present to represent him. (RT 30-135, 222, 230; CT 268-269.) He returned to the courtroom on the second day of trial, and participated in the remainder of the trial, acting as his own attorney. (RT 172-237.) During that time, because jail authorities lost the street clothing appellant had brought to wear at trial, he appeared before the jury dressed in jail clothing and shackled. (RT 173-174; 4/16/01 ACT 8-10, 354.)
C. The prosecution’s case for violation of section 290:
The prosecution presented evidence that appellant had registered as a sex offender with the Seaside Police Department on October 23, 1997, listing his address as 0000 Anystreet in Seaside, and had maintained his registration current as of the time of his arrest. (Exh. 1 [2/1/01 ACT 2-3]; RT 147-150.)
The prosecution theory was that appellant had moved from the Seaside address to someplace in San Jose, based on the conversation police had with appellant’s father at the time of his arrest. (RT 166-167; see RT 144, 146, 150.) Appellant’s father did not testify at trial; however, because appellant was not in the courtroom, Officer McMillin was allowed to testify about the father’s statements without a hearsay objection. (RT 167-168.) The judge instructed the jury that the statements could be used only to explain why the officers arrested appellant. (RT 167, 275.)
Officer McMillin testified about the circumstances of appellant’s arrest described at pages 3-4, ante, saying that appellant was initially stopped because he was “slightly staggering, stumbling like he might be intoxicated.” (RT 163-164.). After the arrest, the police checked to see whether appellant was registered in San Jose; he was not. (RT 168, 176-177.) Although his registration was current in Seaside (RT 149-150), appellant had not notified the Seaside police of a change of address to San Jose [Footnote 9] (RT 149-150), nor had he registered with the San Jose Police Department (RT 175-177).
Ms. J, personnel manager for Acme Technology in San Jose, authenticated a document upon which appellant’s conviction was largely predicated, namely an application for employment dated May 28, 1997. (RT 152-154.) In that application appellant listed his address as “0000 Somestreet” in San Jose. (RT 154-155; Exh. 3 [2/1/01 ACT 14-15].) Appellant was employed by Acme Electronics from June 2, 1997, through April 10, 1998. (RT 155-156; Exh. 4.) Officer McMillin testified that it would take approximately one hour and 15 minutes to drive from Seaside to San Jose in non-commute hours, and more than two hours during peak commute hours. (RT 166.)
Mr. R, maintenance supervisor at 0000 Somestreet testified that “Miss C” was living in apartment 133 and that “[s]he had a black gentleman living with her.” (RT 160.) Mr. R never knew the man’s name, but identified appellant’s photograph as “the gentleman that was staying with Miss C.” (RT 161.) He testified that appellant was staying with Miss C for approximately six to eight months in the latter part of 1997 and the first months of 1998. (RT 161.) He saw appellant and Miss C together around Christmas time of 1997, but “towards the end of the year it seemed to taper off.” (RT 161.) Mr. R “didn’t see [appellant] any more.” (RT 161.)
During the six to eight month period when Mr. R observed appellant around Miss C’s apartment, Mr.R saw him “pretty much” on a daily basis; he saw appellant walking towards a bus stop in the morning “leaving for work” and “noticed him coming home” in the afternoon. (RT 162.) Appellant did not have a car at the apartment. (RT 162.)
Due to appellant’s absence from the courtroom, there was no cross-examination of Mr. R, Ms. J, McMillin or the Seaside Police Department records officer who testified about his registration in Seaside. (RT 191-194.)
D. Facts relating to the prior convictions:
The prosecution presented documentary evidence that appellant had previously been convicted of two counts of rape (§ 261.3) and two counts of forcible oral copulation (§ 288a) on November 27, 1998 in Monterey County docket no. CR 0000 (2/1/01 ACT 26-34), and that he had previously been convicted of one count of unlawful intercourse (§ 261.2) on February 1, 1982 in Monterey Count docket no. MCR 0000 (2/1/01 ACT 36-42.) The prosecution also presented testimony of a fingerprint expert to establish that appellant was the same person who had sustained the prior convictions. (RT 180-187.)
E. The defense case:
Appellant represented himself at trial. He presented no witnesses but did present documentary evidence that he lived at 0000 Anystreet in Seaside, as reflected on his registration card. (Exhs. A, C, D, E & F.) These included payroll records and tax documents. (RT 196-199; Exhs. A, C, D, E & F [2/1/01 ACT 43-52].) He cross-examined the San Jose Police Department’s sex offender registration officer about the provision of section 290 allowing a registrant five working days to register upon acquiring a new address. (RT 178-179.) He also presented a closing argument to the jury which, though not under oath, outlines his theory of defense and his understanding of his reporting requirements.
F. Appellant’s closing argument:
Appellant claimed before the jury that he had never lived in San Jose, but had only worked there. (RT 222-223, 227-229, 231.) He told the jury that he had always lived in Seaside and had been properly registered as a sex offender at his Seaside address at all times. (RT 231.) He admitted that he sometimes spent the night at Miss C’s apartment in San Jose, but he never stayed there for five continuous days. (RT 222-223, 227-228.) He had only stayed with Miss C approximately two days of any given week. (RT 228.) He claimed he had used Miss C’s address on his employment application at Acme Electronics because it gave him a better chance of getting the job. (RT 223.) According to his understanding of the registration requirements, he had no obligation to register as a sex offender in San Jose, nor to inform the Seaside police that he had changed his address. (RT 222-223.) His theory of the case, which was supported by statute and by testimony, was that unless he stayed at a different address for at least five consecutive working days, he did not have to register that address as his residence. (See RT 178-179, 223; § 290, subd. (a)(1)(A).)
With respect to the prior convictions, appellant argued they had occurred 17 to 20 years earlier (RT 223), and he had already served his time for those offenses (RT 229, 231).
He called the prosecution of the case a “systematic lynching” (RT 223), and further outlined the following factual background: Appellant had been at his and his parents’ home in Seaside for the weekend before his arrest. (RT 230.) He and his father had argued because appellant kept asking, “What is wrong with you?” — a reference to his father’s lack of memory due to his advanced age of 81. (RT 230.)
After arriving in San Jose by bus, appellant was walking toward his girlfriend, Miss C’s house, when he was stopped by the police for no apparent reason other than his race. (RT 226, 230.) “I wasn’t bothering nobody. I was walking down the street, minding my own business. There was not a radio call of a crime or disturbance or nothing at that time or point, but I got stopped. Some people call it [being] racial[ly] . . . profiled.” [Footnote 10] (RT 230.)
The police asked him repeatedly where he was coming from and where he was going. (RT 226.) After he answered them several times (that he was coming from the bus station and going to visit his girlfriend at Somestreet), he became frustrated and “told [the officer] exactly where to go.” (RT 226.) Appellant was immediately handcuffed, and his weekend bag was “spread all out over Monterey Road” in a search for contraband. (RT 226.) “The next thing [he] knew” he was “hauled into the back of a police car and brought to the station and charged with a [section] 290, failure to register.” (RT 227.) He told the jury that his life had been “totally wrecked” by his arrest and prosecution, that he had lost his girlfriend and “the best paying job that [he] ever had.” (RT 227, 230-231.) Prophetically, he predicted that if sent to prison for 25 years to life, he would never see his elderly parents again. (RT 229; see habeas petition (both of appellant’s parents have died while he has been incarcerated).)
Over repeated objections, appellant also informed the jury that the Santa Clara County District Attorney’s Office had “solicited” the Monterey County District Attorney’s Office to file charges against him for a section 290 violation in Monterey County, but the Monterey County District Attorney had dropped the charges. (RT 231-232.) Appellant rested his case, continuing to assert that he had broken no law, that the prosecution had been a “manufactured lynching,” and that he did not care about the result of the trial because “my life is over with.” (RT 231-232.)
Numerous times throughout appellant’s closing argument, the judge sustained objections to the arguments or instructed the jury to disregard them because they were not supported by testimony, or because they referred to matters which the judge had ruled were irrelevant. (RT 224, 225, 227, 228, 229-230, 231, 232.)
G. Post-trial motions:
After his conviction, appellant, again represented by the public defender’s office, filed a motion for a new trial on numerous grounds, including that he was absent during a significant part of the trial, that he was shackled and the jury was not instructed with CALJIC No. 1.04, that he was forced through the state’s negligence to appear at trial in jail clothing, that the court erred in failing to inquire as to the availability of the public defender’s office to represent him when he objected to going to trial without counsel, and that his right to self-representation had been compromised because had never been provided with a private investigator. (4/16/01 ACT 1-13.) The motion was later amended to add allegations of mid-deliberation instructional error, Brady violation and newly discovered evidence. (CT 321-340.) Additional detail regarding the factual background of these issues will be discussed in the Argument section.
ARGUMENT
II. THE TRIAL COURT MISINSTRUCTED THE JURY ON ISSUES OF NOTICE, KNOWLEDGE, INTENT AND RESIDENCE.
B. The trial court prejudicially erred in responding to the jury’s request for clarification of the definitions of “domicile” and “residence” by giving only the Horn definition of “residence.”
The jury in this case expressly requested clarification of the “definition of domicile and residence.” (CT 295.) In response to this inquiry, the judge gave the following instruction based on Horn:
“As used in these instructions the term residence means a temporary or permanent dwelling place, which one keeps and to which one intends to return, as opposed to a place where one rests or shelters during a trip or a transient visit.
“Depending upon the circumstances, one may have a single place of residence or more than one place of residence.
“One who has one place of residence and then adds a second place of residence has changed his residence within the meaning of this law and has a duty to report this change resulting in an additional residence even though he may also maintain a residence at the old place.” (CT 292; RT 262.)
Even assuming for purposes of argument that this jury instruction correctly defined “residence,” it simply did not respond to the jury’s inquiry. The jury asked for a definition of both domicile and residence, whereas the judge gave only a definition of residence. This half answer not only tended to eliminate the concept of domicile from the deliberations (and hence the issue of notice), but strongly suggested to the jury that “residence” was the only term pertinent to their decision, By then “defining” “residence” in such a way as to tell them than acquiring a second residence was equivalent to “changing residence,” [Footnote 11] the judge effectively removed from the jury the factual determination whether appellant had “changed” his residence, and directed a guilty verdict on count one. It is noteworthy that appellant objected to the giving of this instruction and asked the court to give the jury a dictionary definition of “domicile.” (RT 257, 260-261.)
The prosecutor herself had emphasized the crucial need to distinguish between “domicile” and “residence” (RT 210-211), saying she could not “stress enough the difference between domicile and residence” (RT 234). Yet, she also told the jury that “the issue” in this case is “where the defendant is residing, not where was his legal domicile.” (RT (211.)
Having been told this distinction was crucial, the jury evidently was struggling with the difference in concepts. The jurors were no doubt puzzled about whether the document which told appellant that “[u]pon coming into any city in which [he was] domiciled, [he] must register” could form the basis for a “willful” failure to register a second, temporary residence, and whether acquiring a second residence could by any stretch of the imagination be considered “changing [his] residence” within the scope of the notice he had been given. (Exh. 1 [2/1/01 ACT 2].) This interpretation of the jury’s likely dilemma is supported by the fact that in the very same note they asked for a “clearer definition of willful — intent.”
“To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying . . . . A jury’s request for . . . clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 250 (emphasis in original).) “Where . . . the need for more [instruction] appears it is the duty of the judge . . . to provide the jury with light and guidance in the performance of its difficult task.” (Wright v. United States (D.C. Cir. 1957) 250 F.2d 4, 11.)
At the very least, the judge should have defined both “domicile” and “residence” as the jury and appellant requested. Indeed, if the court had done even modest research it would have quickly located a case decided under section 290 which distinguishes the concepts of residence and domicile. People v. McCleod (1997) 55 Cal. App. 4th 1205, explored the concept of “residence” in some detail and concluded that “residence is not truly a synonym for domicile,” contrasting the two concepts as follows:
“‘[D]omicile’ properly denotes the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning but which the law may also assign to him constructively. Residence, on the other hand, denotes any factual place of abode of some permanency, that is, more than a mere temporary sojourn. While a person can have in law only one domicile, he may have several ‘residences’ for different purposes.” (Id., at p. 1217 (internal quotations and citations omitted; emphasis added).)
By downplaying the concept of domicile and focusing solely on residence, the prosecutor and the judge distracted the jury from the crucial question whether appellant had ever received notice that he might be prosecuted and convicted for failing to register in San Jose in the circumstances of this case. By then failing to instruct on issues of notice and knowledge as pertinent to the question of “willfulness,” the judge effectively sealed appellant’s fate.
CONCLUSION
For all of the foregoing reasons, appellant’s conviction should be reversed in its entirety and the Court should direct a judgment of acquittal. At the very least, the sentence should be vacated as inconsistent with federal constitution
Dated: April 1, 2002.
Respectfully submitted,
________________________
Karen W. Riley
Attorney for Appellant
FOOTNOTES:
Footnote 1: All statutory references, unless otherwise indicated, are to the Penal Code.
Footnote 2: Although the state charged appellant with a violation of § 290, subd. (g)(2) (CT 54; RT 141, 246), that subdivision is actually a penalty provision; the relevant registration requirements are actually contained in section 290, subds. (a)(1)(A) and (f)(1).
Footnote 3: The state has been unable to produce a copy of the amended information (CT 190, 193) upon which appellant was convicted. (CT 366.) The original information, filed May 7, 1999, charged appellant with four strike priors and two serious felony priors (§ 667, subd. (a).) (CT 55-56.)
Footnote 4: The designation “CT” refers to the clerk’s transcript completed October 11, 2000; “2/1/01 ACT” refers to the augmented clerk’s transcript completed February 1, 2001; “4/16/01 ACT” refers to the augmented clerk’s transcript completed April 16, 2001; “RT” refers to the main volume of reporter’s transcripts of trial and sentencing; references to reporter’s transcripts of other proceedings are preceded by date of the hearing (e.g., “4/16/99 RT”).
Footnote 5: His name is spelled both “Menard” (CT 242) and “Maynard” (RT 164) in the record.
Footnote 6: Section 13519.4, subds. (d) & (e), prohibit police officers from engaging in racial profiling, which is defined in the statute as “the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped.”
Footnote 7: Although appellant’s “Mark Fuhrman” statement did not come out at trial, it may go a long way in explaining why the police so doggedly pursued their investigation of appellant, as well as some of the subsequent irregularities in his prosecution.
Footnote 8: Appellant intends to file a petition for writ of habeas corpus shortly after the filing of his opening brief. References in this brief to a petition for writ of habeas corpus are to that intended petition.
Footnote 9: In fact, the Santa Clara County District Attorney’s office contacted authorities in Monterey County and requested that charges be filed there. Monterey County initially pressed charges but later dismissed them in the interests of justice. (See 4/16/99 RT 5, 8-9; see also habeas petition.) The court ordered that the jury not be informed of that fact. (RT 14-15, 21-22, 201, 231.)
Footnote 10: Though appellant’s claims in this regard are not supported by trial testimony, they are supported by preliminary examination testimony. (CT 14-15; 4/16/01 ACT 29.)
Footnote 11: In Horn, the jury found that the defendant had violated § 290 based on his acquisition of a second residence, which appeared to be his exclusive place of abode for long periods of time, though he may have kept some of his possessions at a previously registered address. (68 Cal.App.4th at p. 412.) That these facts amounted to “changing his residence” was a determination made by the jury. For the court below to instruct the jury, however, that whenever one acquires any type of second, temporary residence, he has “changed his residence” for purposes of the registration statute was to remove from the jury a crucial factual determination, and had the effect of directing a verdict against appellant.
