Filed 5/5/14 P. v. Cuevas CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B243117

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA091065)
         v.

GUSTAVO CUEVAS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
R. Romero, Judge. Affirmed.
         Roberta Simon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.


                                          _______________________
       Gustavo Cuevas appeals his convictions and sentence on two counts of failing to
register as a sex offender. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       I.     January 2010 Release from Incarceration
       On April 5, 2002, Cuevas was convicted of a felony that required him to register
as a sex offender pursuant to Penal Code1 sections 290 through 290.023. He was released
from incarceration on January 28, 2010.
       On February 3, 2010, Cuevas reported to Los Angeles Police Department officer
Dawna Killingsworth for sex offender registration. Together they reviewed a form
entitled, “Notice of Sex Offender Registration Requirement.” She allowed Cuevas time
to read the form and to ask questions, and she reviewed the requirements of the form.
Cuevas signed the document and initialed each line on a list of requirements. One of the
listed requirements was the requirement to re-register within five days after release from
an incarceration lasting more than 30 days. Cuevas initialed this requirement, and agreed
to follow the terms.
       Next, Killingsworth and Cuevas reviewed a sex registration update form. Cuevas
provided information about where he would be staying, and that information was
included on the form. Killingsworth gave Cuevas time to read the form and to ask
questions. He appeared to understand what he was reading, agreed to follow the terms,
and signed and initialed the form. Killingsworth gave Cuevas copies of the registration
documents.

       II.    October 2010 Release from Incarceration
       Cuevas was subsequently incarcerated from September 17, 2010, through October
30, 2010. He was released on October 30, 2010.
       On November 2, 2010, Cuevas reported to his parole officer, Monica Abundis, in
Huntington Park. She reviewed a form with him that contained the conditions of his


1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                             2
parole, allowing him time to read it. Abundis asked him to initial certain lines of the
document and to sign it if he understood and agreed with its terms. Cuevas signed the
document.
       The parole conditions form specifically stated that registration was required under
section 290. Abundis went over that registration requirement with Cuevas, and she
advised him that he needed to register as a sex offender as soon as possible. Cuevas said
he was homeless and a transient. Abundis advised him to register as a transient as soon
as possible, and that he had only five business days to register. Cuevas indicated that he
understood the requirement and that he would fulfill it. Among other conditions to which
Cuevas agreed were requirements that he keep his updated sex offender registration
verification with him at all times and present it during contact with law enforcement, and
that he remain in California unless given permission by his parole officer to leave.
       Abundis placed a global positioning system (GPS) device on Cuevas’s ankle for
parole supervision and instructed Cuevas not to take off the device. The device
monitored his location and also sent out an alert to the parole agent if it was removed or
tampered with. Cuevas was wearing the GPS device when he left Abundis’s office at
approximately 12:05 p.m.
       Later that day, the GPS device transmitted an alert indicating that Cuevas had
removed the device. At approximately 1:25 p.m., a woman identifying herself as
Cuevas’s girlfriend returned the cut-off GPS device to Abundis.
       Cuevas failed to re-register as a sex offender within five business days of his
release from incarceration. His location was unknown to parole and law enforcement
until he was taken into custody in Los Angeles County on December 29, 2010.

       III.   June 2011 Release from Incarceration
       Cuevas was incarcerated from January 21, 2011, through June 7, 2011, and was
released on June 7, 2011. On June 8, 2011, Cuevas reported to parole agent Melissa
Cogill. She went over the conditions of parole with him again, and he initialed and
signed a form reflecting these conditions. Cogill went over the requirement that he


                                             3
register as a sex offender with Cuevas, as well as the residency restrictions that apply to
him as a sex offender. Cuevas read and signed the specific sex offender addendum form
that specified registration requirements and other conditions for sex offenders. Cuevas
also read and signed a form entitled, “Notice of Sex Offender Registration Requirement.”
He confirmed that he understood what was required of him and affirmed that he would
follow the rules.
       Cogill asked Cuevas where he was going to live to ensure that his address was
compliant with residency restrictions. Cuevas said he wanted to live with his girlfriend;
he did not provide her address, but he implied that the residence was close to a park or a
school. Cogill told him that if he could not provide her with a residence, he had to
register as a transient. Cogill explained that if he were to register as a transient, he would
register with the police department that covered the area, or the sheriff’s department if he
was within the county. Cuevas said he would be living in Los Angeles County. Cuevas
agreed not to leave California without Cogill’s permission, and he never asked for
permission to leave the state.
       Cogill fitted Cuevas with a GPS device, and it was intact when Cuevas left the
office. Cogill received a tampering alert from the device on June 12, 2011. Cuevas was
a parolee at large until July 18, 2011, when he turned himself in.
       Cuevas was charged with two counts of failing to register as a sex offender upon
release from incarceration (§ 290.015, subd. (a)), one based on the time period from
November 8, 2010, and December 9, 2010, and the other based upon the time period
from June 14, 2011, and July 18, 2011. It was alleged as to both counts that Cuevas had
suffered prior convictions within the meaning of the Three Strikes Law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)).
       Cuevas was convicted by the jury on both counts. The court found true the prior
conviction allegations, denied Cuevas’s motion to strike his two prior strikes, and
imposed a sentence of 53 years to life.




                                              4
                                        DISCUSSION
       I.     Sufficiency of the Evidence to Support Conviction

       Cuevas argues on appeal that the evidence was insufficient to support his
convictions for failing to register as a sex offender because the prosecution failed to
prove beyond a reasonable doubt that Cuevas was living in California on the dates
relevant to each charge. “In reviewing a claim for sufficiency of the evidence, we must
determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
or special circumstance beyond a reasonable doubt. We review the entire record in the
light most favorable to the judgment below to determine whether it discloses sufficient
evidence—that is, evidence that is reasonable, credible, and of solid value—supporting
the decision, and not whether the evidence proves guilt beyond a reasonable doubt.
[Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses.
[Citation.] We presume in support of the judgment the existence of every fact the jury
reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
       Section 290.015, subdivision (a) provides that a person subject to the sex offender
registration requirement “shall register, or reregister if he or she has previously
registered, upon release from incarceration, placement, commitment, or release upon
probation.” The individual “must register with the chief of police of the city in which he
or she is residing, or with the sheriff of the county if he or she is residing in an
unincorporated area or a city that has no police department. [Citation.] Registration must
be made within five working days of ‘coming into, or changing his or her residence
within’ any city, county, or city and county. [Citation.]” (People v. Armas (2011) 191
Cal. App.4th 1173, 1177.) Offenders without a residence are considered to be transients




                                               5
within the meaning of the law. (Ibid.) Transients must reregister every 30 days;
offenders with residences must reregister annually. (Ibid.)
       Here, there was substantial evidence from which the jury reasonably could have
concluded that Cuevas resided or was physically present as a transient in California
during the relevant time periods. In the 2010 failure to register, Cuevas had told Abundis
that he was a transient and that he was homeless. She explained how to register as a
transient and the requirement to register within five days, and Cuevas agreed. Cuevas
also agreed that he would stay in California unless he received permission from his parole
agent to leave. Cuevas was taken into custody again two months later in Los Angeles
County.
       In the course of notifying Cuevas of his registration requirement in 2011, Cogill
asked Cuevas where he planned to live. Cuevas indicated he would live with his
girlfriend, whom Cogill believed to live in Torrance. It appeared, however, that she
might reside too close to a park or school for Cuevas to live with her, so Cogill explained
how to register as a transient. Cuevas agreed to register as a transient, and he told Cogill
that he would be living in Los Angeles County. Cuevas also agreed to the parole
condition requiring him to obtain permission before leaving the state, and he never sought
permission to leave. There was no indication in Cuevas’s law enforcement file of Cuevas
being extradited to California at any point in 2010 or 2011.
       In light of this evidence of Cuevas’s regular presence in California, the absence of
any extraditions, his multiple apprehensions in California, and his expressed intent to stay
in Los Angeles County, the jury could reasonably conclude that Cuevas resided, or was
physically present as a transient, in California without reregistering as a sex offender
within five days of being released from incarceration.
       Cuevas contends that People v. Wallace (2009) 176 Cal.App.4th 1088 mandates
reversal here. In Wallace, a sex offender had complied with registration requirements for
several years and had last registered in Contra Costa County in January 2006. (Id. at
pp. 1093-1094.) In April 2007 his last known address was determined to be vacant.
(Id. at p. 1094.) Wallace’s conviction for failing to register within five working days of

                                              6
changing his address or location was overturned because there was no evidence of his
location in April 2007 and no evidence “sufficient to permit a reasonable inference that
appellant remained in California during that time period.” (Id. at p. 1103.) Moreover, the
then-applicable jury instruction did not advise the jury that the defendant was required to
reside within California at the time of the charged offense to convict. (Id. at p. 1104.) In
contrast, here, the jury was properly instructed that the prosecution had to prove that
“defendant resided in or was physically present as a transient in California” and that he
“failed to register as a sex offender with the police chief of the city or the sheriff of the
county in which he resided or was physically present as a transient within five days of
release from incarceration” to be guilty of failing to register,2 and there was evidence in
the record, as discussed above, from which a reasonable jury could conclude that Cuevas
had remained in California at all relevant times. Wallace does not require any other
outcome here.

       II.    Alleged Instructional Error

       As given, CALCRIM No. 1170 provides that the prosecution must prove four
listed elements: (1) “The defendant was previously convicted of an offense for which the
defendant is required to register”; (2) “The defendant resided in or was physically present
as a transient in California”; (3) “The defendant actually knew he had a duty under Penal
Code section 290 to register as a sex offender and that he had to register within five
working days of release from incarceration”; and (4) “The defendant willfully failed to
register as a sex offender with the police chief of the city or the sheriff of the county in
which he resided or was physically present as a transient within five working days of
release from incarceration.” Counsel requested that the instruction be modified to
mention in the fourth element that the defendant must at the time of the failure to register
be living in California, and this request was denied.



2      We acknowledge that Cuevas separately challenges the adequacy of this jury
instruction; we address this contention in Section II, post.

                                               7
       Cuevas contends that CALCRIM No. 1170 fails to communicate to the jury that
the accused must have been residing or physically present as a transient in California at
the time of the offense, and that it permits a jury to convict a defendant for failing to
register as long as he had resided in or was physically present as a transient in California
at any time. Cuevas offers no authority to support his reading of the statute, nor are we
aware of any; moreover, we agree with the trial court that this construction of the
instruction was “unreasonably strained” and “tortured.” The second element of the
offense is that the defendant “resided in or was physically present in California.”
(CALCRIM No. 1170.) While the second element does not specifically refer to the time
when the accused must be resident or present in California, the timing is provided by the
fourth element of the instruction: “The defendant willfully failed to register as a sex
offender with the police chief of the city or the sheriff of the county in which he resided
or was physically present as a transient within five working days of release from
incarceration.” (CALCRIM No. 1170.) The reference in the final element to the city
and/or county in which the person was residing or physically present clearly calls back to
the second element and the requirement that the city or county of residence/presence be
in California. Reading the instruction as a whole, we do not believe that there is a
reasonable likelihood that the jury understood the instruction as Cuevas posits (People v.
Kelly (1992) 1 Cal.4th 495, 525-526), particularly in light of defense counsel’s closing
argument emphasizing that “element no. 4 is linked to element no. 2. The defendant had
to have been residing or physically present in California while he willfully failed to
register as a sex offender.” We therefore find no error in refusing the requested
modification.

       III.     Denial of Romero Motion

       Cuevas asserts that the trial court abused its discretion when it denied his motion
to strike his prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th
497 for the purposes of applying the Three Strikes Law. In deciding whether to strike a
prior serious and/or violent felony conviction allegation or finding under the Three


                                              8
Strikes Law, the court “must consider whether, in light of the nature and circumstances of
his present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be deemed
outside the scheme’s spirit, in whole or in part, and hence should be treated as though he
had not previously been convicted of one or more serious and/or violent felonies.”
(People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) We review rulings on
motions to strike prior convictions for an abuse of discretion. (Id. at p. 162.)
       Cuevas argues that his prior strikes should have been stricken because the court
considered the nature and number of his convictions without giving due consideration to
the nature of his current offense and other individualized factors, specifically that his
present offenses were nonviolent; registration offenses were routinely treated as second
strike cases by the District Attorney; his most recent strike was more than ten years old;
and he would have had a lengthy sentence of seven years, four months even if the strikes
had been stricken. Had the court properly weighed the relevant considerations, he
contends, the court would have found that he was outside the spirit of the Three Strikes
Law.
       We have reviewed the transcript of the hearing on the Romero motion and
conclude that, contrary to Cuevas’s contention, it is apparent that trial court discharged its
duty to consider whether, in light of the nature and circumstances of his present felonies
and prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, Cuevas should have been deemed outside the scheme’s spirit.
(Williams, supra, 17 Cal.4th at p. 161.) The trial court discussed these considerations
when ruling, noting that the present offenses were nonviolent and were not themselves
strikes. The court noted that Cuevas’s prior convictions were for very serious offenses:
“The arson for which he was given probation, ultimately violated probation, got a prison
commitment of three years. The other strikes are much more serious in nature[,]
involving the lewd act for which he ultimately received eight years in prison, the child
being under 14. The robbery of the female employee was particularly of a vicious nature.
He received nine years on that concurrent with the lewd act matter. [¶] The defendant’s

                                              9
conduct during his life is what the prosecutor indicated, continuous criminal activity, on
parole. He has removed bracelets to prevent his whereabouts being detected by the
authorities. So his conduct on probation and parole has been poor. His conduct in the
past has shown he’s an extreme danger to the community and is not open to
rehabilitation.” The court acknowledged that Cuevas’s present offenses were nonviolent
“low-grade felon[ies],” but concluded that “the other circumstances indicate that he is the
kind of person that the three-strike law was designed to deal with, and that is to prevent
future harm to society.” The court’s comments demonstrate that it had considered the
nature and circumstances of Cuevas’s present felony and his prior serious and/or violent
felony convictions, as well as the circumstances of his background, character, and
prospects, and the court concluded that in light of his consistent serious criminal activity,
his efforts to evade supervision on parole, and his resistance to rehabilitation, Cuevas
could not be considered to be outside the scheme’s spirit such that sentencing him as a
third strike offender would be unjust. (Ibid.)
       The court’s determination was not an abuse of discretion. The record reveals no
basis for concluding that Cuevas is outside the spirit of the Three Strikes Law. Cuevas
has an extensive criminal record beginning with a conviction for grand theft person
(former § 487, subd. (2), now § 487, subd. (c)) in February 1989, and a sentence of
county jail plus three years of probation. Only months later, in May 1989, he was
convicted of arson (§ 451, subd. (d)) and sentenced to county jail plus three months of
probation. He violated that probation later the same year when he was convicted of
possession of a controlled substance (Health & Saf., § 11350, subd. (a)), leading to a
three-year state prison sentence. He was released on parole in April 1991, and in April
1993 he was convicted of burglary (§ 459) and sentenced to two years in state prison. In
May 1994, Cuevas was released on parole. In August 1994, he violated his parole and
was returned to prison. In August 1995, he was paroled again, but violated his parole in
December 1995. On December 28, 1995, Cuevas was paroled, but six days later he was
convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) and sentenced to county
jail and three years of probation. On August 2, 1996, he was convicted of corporal injury

                                             10
to a spouse (§ 273.5) and sentenced to county jail. He violated his parole multiple times
between November 1996 and May 1998.
       Cuevas was convicted of robbery (§ 211) on August 28, 2000, and was sentenced
to nine years in prison. He was convicted of a lewd and lascivious act on a child under
the age of 14 years (§ 288, subd. (a)) in April 2002 and was sentenced to eight years in
prison. He was paroled on January 28, 2010, and that parole was revoked in April 2010.
He was again paroled on October 30, 2010, and he immediately committed one of the
instant offenses by failing to register as a sex offender. After he was again paroled in
June 2011, he committed the second of the instant offenses.
       Cuevas argues that his most recent strike was over ten years old, but the age of a
strike is not a reason to strike it when a person has engaged in consistent criminal activity
over the intervening years. (Williams, supra, 17 Cal.4th at p. 163 [13 years elapsing
between strike offense and present offense not significant given the failure to refrain from
criminal activity in the interim]; People v. Gaston (1999) 74 Cal.App.4th 310, 320-321
[remoteness of strike priors not significant in light of “unrelenting record of recidivism”
and failure to lead a crime-free life in the interim].) Although he argues that the present
offenses are nonviolent, that fact does not remove him from the spirit of the Three Strikes
Law, because the law intends to ensure longer prison sentences for defendants who
commit felonies after having qualifying strikes. (Gaston, at p. 321 [“While the crime is
not as serious as many felonies—indeed it is not defined as a ‘serious felony’—it is far
from trivial”].) He then asserts that third strike failure to register cases are routinely
settled for 32 months or less and that they are treated as second strike cases, but his
characterization of how cases are “routinely” handled, based on an assertion made by
defense counsel at the Romero hearing, does not establish that he is outside the spirit of
the Three Strikes Law or that handling the case differently was an abuse of discretion.
Finally, Cuevas’s assertion that his non-strike sentence of seven years, four months
would be lengthy, in the interests of society, and consistent with his right to a
proportionate punishment does not demonstrate any abuse of discretion. The trial court
acted well within its discretion in determining that in light of Cuevas’s present offenses

                                              11
and criminal history, as well as his background, character, and prospects, he should not
be deemed outside the spirit of the Three Strikes Law.

                                     DISPOSITION

      The judgment is affirmed.




                                                 ZELON, J.
We concur:




      WOODS, Acting P. J.




      SEGAL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution

                                            12
