Filed 4/30/14 P. v. Martinez CA4/2



                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
               California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E057556

v.                                                                        (Super.Ct.No. SWF1101997)

DIONISIO LEON MARTINEZ,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter

Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.


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       Following a mistrial, the People were permitted to file a fifth amended information

alleging defendant Dionisio Leon Martinez failed to register as a sex offender within five

working days of changing his address within a jurisdiction (Pen. Code,1 § 290, subd. (b),

count 1), and defendant failed to register under section 290, subdivision (b), after having

suffered a prior conviction for failing to register under former section 290,

subdivision (g)(2) (§ 290.018, subd. (b), count 2). A jury found defendant guilty on both

counts. The trial court then sentenced defendant to the middle term of two years on

count 2, designated count 2 as the principal count, sentenced defendant to the middle

term of two years on count 1, and stayed the sentence on count 1 pursuant to section 654.

       On appeal, defendant contends the record does not contain substantial evidence to

support his convictions. According to defendant, a key witness’s testimony did not

establish defendant was not living in his last registered address immediately before

moving to his most recent apartment and, therefore, he could not be found guilty of

failing to register a new address within five working days of moving. We conclude the

witness’s testimony does establish defendant moved from his last registered address

months before moving into this most recent apartment, so we must affirm the judgment.




       1   All further statutory references are to the Penal Code.



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                                             I.

                                          FACTS

       Deputy Gray of the Riverside County Sheriff’s Department testified that from

2009 to 2011 he was assigned to the Temecula station, during which time one of Gray’s

primary responsibilities was to register sex offenders. Gray was familiar with defendant

because he personally registered him. Gray identified exhibit No. 18 as a sex offender

registration form signed by defendant on August 28, 2009. The form indicated defendant

registered as living at an address on Kaffirboom Court in Temecula. Among other things,

the form signed and initialed by defendant explained he was required to reregister, within

five working days of moving to a new address, with the law enforcement agency having

jurisdiction over the new address.

       Gray identified exhibit No. 19 as a sex offender registration form signed by

defendant on July 7, 2010. The form indicated defendant registered as living at 28464

Felix Valdez, apartment 109, in Temecula, which is an address within the jurisdiction of

the Temecula sheriff’s station. Like exhibit No. 18, this form included the same list of

registration duties printed on the back, and included defendant’s initials and signature

indicating he understood his responsibilities.

       Gray identified exhibit No. 20 as a sex offender registration form defendant signed

on August 11, 2010, when defendant completed his annual update of his registration two

days after his birthday. Like the prior two forms, this one indicated defendant

acknowledged he understood his sex offender registration duties. The back of this form




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was identical to the one defendant signed one month earlier, and it had no changes in

terms of defendant’s duties.

       Gray also identified exhibit No. 12, a Spanish language sex offender registration

form signed by defendant on June 3, 2011. This last form indicated defendant registered

as living at 29485 Rancho California Road, apartment 237, in Temecula, which is also an

address within the jurisdiction of the Temecula sheriff’s station. Like the other forms

signed by defendant, this one included defendant’s signature and initials next to his sex

offender registration duties, indicating he understood those duties.

       Finally, Gray testified that during the almost nine-and-a-half-month period

between defendant’s annual registration in August 2010 and his registration in June 2011,

he had no other contact with defendant. When defendant registered on June 3, 2011, he

told Gray he had moved from 28464 Felix Valdez Avenue, apartment 109, to 29485

Rancho California Road, apartment 237, within the past five days. Defendant did not tell

Gray he lived in a different location before moving to the Rancho California address.

       Mr. Lobato testified he and his father, mother, brother, and sister moved into

28464 Felix Valdez Avenue, apartment A 109, in November 2010, and they continued to

live there. Mr. Lobato testified he did not know defendant, and defendant did not live

with him and his family at that address between November 2010 and May 2011. On

cross-examination, Mr. Lobato testified that before moving into apartment 109, he lived

in the same apartment complex, in the apartment located above 109.




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       Detective Williams of the Riverside County Sheriff’s Department testified he

conducted an investigation to determine whether defendant complied with his duty to

register a change of address within five working days of moving. Williams interviewed

defendant, during which defendant said he was required to register as a sex offender and

he understood his registration duties, including the duty to register a change of address

within five working days of a move.

       Defendant stipulated he suffered a conviction for indecent exposure on December

22, 2004, which resulted in him being required to register as a sex offender for the

remainder of his life, pursuant to section 290. Defendant also stipulated he suffered a

prior conviction on June 9, 2005, for failing to register as a sex offender, in violation of

former section 290, subdivision (g)(2).

                                              II.

                                       DISCUSSION

       “‘When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.’ [Citation.] We 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 beyond a reasonable doubt.’

[Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the




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existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]”

(People v. Edwards (2013) 57 Cal.4th 658, 715.)

       Under section 290, subdivision (b), a person required to register as a sex offender

must register with local law enforcement “within five working days of coming into, or

changing his or her residence within, any city, county, or city and county, or campus in

which he or she temporarily resides, and shall be required to register thereafter in

accordance with the [Sex Offender Registration Act (SORA)].” (Italics added.) Failure

to comply with SORA is punishable as a felony when the conviction which triggered a

defendant’s registration is itself a felony, and when a defendant has a prior conviction for

failing to register. (§ 290.018, subd. (b).)

       Defendant contends the People did not prove he failed to register his new address

within five working days of moving, so his two convictions cannot stand. His argument

is entirely premised on the testimony of Mr. Lobato. As originally transcribed and

certified, the reporter’s transcript indicated Mr. Lobato testified he lived at 28464 Felix

Valdez Avenue, “Apartment A,” in Temecula. Mr. Lobato also testified defendant did

not live with the Lobato family from November 2010 through May 2011. Because the

address given by Mr. Lobato did not correspond to defendant’s previously registered

address of “28464 Felix Valdez, Apartment 109,” defendant contends Mr. Lobato’s

testimony in no way proves defendant moved from apartment 109 more than five

working days before registering his new address of 29485 Rancho California Road,

apartment 237, on June 3, 2011.




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       After defendant filed his opening brief, the People contacted the court reporter and

asked her to review her transcript notes to determine whether the transcript accurately

reflected Mr. Lobato’s testimony on page 667. Soon thereafter, the court reporter filed

with this court an affidavit dated December 11, 2013, indicating she reviewed her

transcript notes and discovered an error on page 667, line 10. The court reporter also

filed a corrected page 667, which indicates Mr. Lobato actually testified he lived at

“28464 Felix Valdez Avenue in Apartment A 109,” not simply “in Apartment A.” The

corrected page of the reporter’s transcript has now been made part of the certified record

on appeal. (See People v. Whitmore (1967) 251 Cal.App.2d 359, 368, fn. 2.)

Notwithstanding the correction to the reporter’s transcript, defendant contends

Mr. Lobato’s testimony still does not establish defendant moved from 28464 Felix

Valdez Avenue, apartment 109, more than five working days before registering his new

address on Rancho California Road because he never lived at 28464 Felix Valdez,

apartment A 109, the address given by Mr. Lobato.

       We conclude Mr. Lobato merely misspoke when, on page 667 of the corrected

reporter’s transcript, he testified he and his family lived “in Apartment A 109.” A mere

14 lines down the same page of the transcript, the prosecutor asked Mr. Lobato, “Did the

defendant live with you and your family at 28464 Felix Valdez Apartment No. 109 in

Temecula in November of 2010?” Mr. Lobato answered, “No.” The prosecutor next

asked Mr. Lobato, “Did the defendant live with you and your family at that address,

Apartment 109, in December of 2010?” Mr. Lobato answered, “No.” Finally, the

prosecutor asked Mr. Lobato, “Did the defendant live with you and your family in

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Apartment 109 in January of 2011?” Once again, Mr. Lobato answered, “No.” In

response to these questions, Mr. Lobato did not correct the prosecutor and say his correct

apartment was A 109.

       Likewise, on cross-examination, defendant’s appointed counsel asked Mr. Lobato,

“And before you moved to Apartment No. 109, you lived in another apartment; is that

correct?” Mr. Lobato answered, “Yes, that’s correct.” After asking Mr. Lobato which

apartment he previously lived in, defense counsel asked Mr. Lobato, “The apartment

below you was 109, the apartment that you live in now?” Mr. Lobato answered, “Yes.”

As with the prosecutor’s questions, Mr. Lobato did not correct defense counsel and say

the correct apartment was A 109.

       The prosecutor and defense counsel’s questions helped clarify Mr. Lobato’s

testimony he and his family lived at 28464 Felix Valdez Avenue, apartment 109. Nor

was there any dispute at trial on this point. Shortly after Mr. Lobato testified, the trial

court and the parties discussed whether defendant would be able to introduce statements

he made during his postarrest interview to the effect that, while living in other locations

sometime after moving from apartment 109 in November 2010, he was unaware of his

duty to register his change of address. During that discussion, the trial court stated its

belief defendant’s statements were irrelevant to the charge of failing to register a change

of address in November 2010, because “[i]t’s undisputed that the Lobato family moved

into this apartment that [defendant] was claiming [was] his residence in November of

2010,” i.e., apartment 109. Defense counsel did not correct the trial judge or otherwise




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say the address given by Mr. Lobato was not the same as defendant’s previously

registered address.

       Finally, during closing argument, the prosecutor reminded the jury about

Mr. Lobato’s testimony that since November 2010 he and his family lived at 28464 Felix

Valdez Avenue, apartment 109, and defendant never lived with them. Defense counsel

did not object that the prosecutor misstated the evidence, and in her own closing

argument defense counsel did not argue Mr. Lobato and his family lived in a different

apartment than defendant’s old apartment.

       Defendant contends the prosecutor and defense counsel’s follow-up questions to

Mr. Lobato, the trial court’s observations of the testimony, and the parties’ closing

arguments are not evidence and may not be considered when determining whether there

is substantial evidence to support the judgment. True enough, those matters are not

evidence, and the trial court properly instructed the jury to not consider them as such.

But we may properly consider the circumstances surrounding a witness’s testimony when

determining what the evidence in this case actually was. (See, e.g., People v. Margarejo

(2008) 162 Cal.App.4th 102, 107 [“Counsel’s questions themselves are not evidence, but

the question’s wording typically is relevant to a reasonable interpretation of the witness’s

answer”].)

       When considered in proper context, the record demonstrates: (1) on July 7, 2010

and August 11, 2010, defendant registered as living at 28464 Felix Valdez Avenue,

apartment 109; (2) since November 2010, Mr. Lobato and his family lived at 28464 Felix

Valdez Avenue, apartment 109; (3) defendant did not live with the Lobato family any

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time between November 2010 and May 2011; and (4) defendant did not register his new

address of 29485 Rancho California Road, apartment 237, until June 3, 2011; therefore,

(5) defendant did not register his change of address from 28464 Felix Valdez Avenue,

apartment 109, to 29485 Rancho California Road, apartment 237, within five working

days of moving, as mandated by section 290, subdivision (b). Because the record

contains substantial evidence to support defendant’s convictions, we affirm the judgment.

                                           III.

                                    DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                             McKINSTER
                                                                             Acting P. J.
We concur:



KING
                         J.



MILLER
                         J.




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