Filed 6/24/16 P. v. Morgan CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR



THE PEOPLE,                                                             B266847

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA436797)
         v.

CARL D. MORGAN,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County,
Katherine Mader, Judge. Affirmed.
         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.


                                           ______________________
       Defendant Carl D. Morgan appeals from the judgment of conviction for failure to
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update his registration as a sex offender. (Pen. Code, § 290.012, subd. (a).) The
judgment is affirmed.


                    FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was convicted of a sex crime in Florida which, were this crime
committed in California, would be an offense requiring registration as a sex offender.
Upon moving from Florida to Los Angeles, defendant registered as a sex offender with
the Los Angeles Police Department (LAPD) on January 30, 2014. He updated his
registration after obtaining a new cell phone number on July 1, 2014.
       Defendant’s birthday is January 24. Under section 290.012, subdivision (a),
defendant must update his registration “annually, within five working days of his
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. . . birthday.” In early 2015, Alexander Tan of LAPD’s Registration Enforcement
Compliance Team researched the California Sex and Arson Registry (CSAR) database
and found no updates to defendant’s registration after July 1, 2014. Based on his
research, Tan concluded that defendant had failed to update his registration.
       Defendant was charged with violation of section 290.012, subdivision (a). The
case proceeded to jury trial.
       Tan testified at trial as to the factual grounds for the alleged violation. Tan
authenticated defendant’s initial registration form, dated January 30, 2014 (exhibit 2), and
updated form, dated July 1, 2014 (exhibit 1).

       1   All further undesignated statutory references are to the Penal Code.

       2 Section 290.012, subdivision (a) provides: “Beginning on his or her first
birthday following registration or change of address, the person shall be required to
register annually, within five working days of his or her birthday, to update his or her
registration with the entities described in subdivision (b) of Section 290. At the annual
update, the person shall provide current information as required on the Department of
Justice annual update form, including the information described in paragraphs (1) to (5),
inclusive of subdivision (a) of Section 290.015. The registering agency shall give the
registrant a copy of the registration requirements from the Department of Justice form.”
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        LAPD Officer Robert Lona testified that when defendant updated his registration
on July 1, 2014, defendant received a copy of exhibit 1. Exhibit 1 contained a warning,
initialed by defendant, that he must update his registration each year “in person within
five working days before or after” his birthday at the local law enforcement agency for
his current residence or location (if transient). Lona testified that sex offenders may
register with LAPD on Tuesdays, Wednesdays, and Thursdays from 6:30 a.m. to 11:00
a.m..
        The defense theory was based on lack of criminal intent and involved two main
points. First, defendant believed that he was allowed to update his registration at any
time during the month of his birthday. Second, in addition to this belief, he also believed
that he had updated his registration while speaking to a booking officer at the Santa
Monica jail where he was held on January 13 and 14, 2015. According to his trial
testimony, defendant told the booking officer that he was a registered sex offender and
had twice registered the address of the Los Angeles Mission as his home address. The
booking officer told him the Los Angeles Mission was not a valid home address, entered
the address of the jail (333 Olympic Drive, Santa Monica) in the computer, and had him
sign a one-page form that contained 22 lines of warnings. Defendant testified that he
believed the booking officer had updated his registration. On cross-examination,
defendant was questioned about LAPD’s multi-page registration forms (exhibits 1 and
2)—which required his signature and thumb print on each page and his initials on 23
separate lines of warnings—and Santa Monica Police Department’s single-page form.
        Outside the presence of the jury, defendant moved for dismissal, arguing the
prosecution had failed to show that he intentionally violated the registration statute. The
motion was denied.
        In rebuttal, Detective Matthew Rice, custodian of sex offender records for the
Santa Monica Police Department, testified that his department usually does not assist
persons in custody to register as sex offenders because the Santa Monica jail is a
temporary holding facility. Rice explained that if defendant had asked to register while
in the Santa Monica jail, defendant’s name would have appeared in the sex offender

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registration log. Based on his review of that log and the CSAR database, Rice testified
that defendant did not update his registration on January 13 or 14, 2015. Rice explained
that both police departments use the same multi-page registration forms, but the LAPD
forms contained an additional page with defendant’s photograph.
       After both sides rested, defendant requested that the court take judicial notice of a
Florida statute allowing updated registrations to be made at any time during the month of
the person’s birthday.3 The trial court expressed concerns about lack of evidence of
defendant’s reliance on the Florida statute, and untimeliness: “If you had asked me
during his testimony to take judicial notice of it, I would feel differently because that
would give both sides the opportunity to question the defendant while he’s on the stand
as to what he really believed he was required to do as a result of the Florida conviction in
Florida. [¶] We don’t have anything. And so it’s kind of taking unfair advantage to have
me take judicial notice now because there is an inference, oh, well, if he could register at
any time during the month of January, then that’s obviously what he was thinking about
here in California. And no one gets to question him about it. So I—I just don’t think it’s
an appropriate time to do that.”
       The trial court offered to take judicial notice of the Florida statute if defendant
would retake the stand and testify about his reliance on its provisions, subject to cross-
examination regarding his knowledge of Florida law and his two prior felony convictions
for failure to register in Florida. The prosecutor argued that cross-examination on the
prior convictions for failure to register was appropriate because defendant’s credibility
was at issue: “So he’s now claiming that he knows Florida’s laws so well, but he’s
confused about California’s law when he was convicted twice in Florida for not knowing
the law.” The prosecutor also made an offer of proof as to the Florida convictions: “Just
so that we’re clear, I actually have his 969(b) packet. We’ve alleged both of those failure

       3 Subdivision (13)(a) of Florida Statutes section 944.607 provides: “A sexual
offender must report in person each year during the month of the sexual offender’s
birthday and during the sixth month following the sexual offender’s birth month to the
sheriff’s office in the county in which he or she resides or is otherwise located to
reregister.”
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to register priors on the complaint. I have the conviction record from those cases. I just
haven’t presented it because we’ve bifurcated the priors trial. [¶] If the issue is what
specifically he was convicted of, we can make copies and go over them together and
determine that he failed to comply with Florida’s sexual registration law.”
       Defense counsel declined to have defendant retake the stand, but renewed the
request for judicial notice. The court denied the request on the ground that, absent
evidence of defendant’s reliance on the Florida statute, it was irrelevant.
       In closing argument, the prosecutor argued that defendant violated the statute and,
contrary to his testimony, did not update his registration at the Santa Monica station. He
argued that defendant knew there was more to the registration process than simply
saying, “I’m a sex registrant and I live at the Mission,” and knew he had to give thumb
prints and signatures on each page, with initials for 20 requirements. The prosecutor
explained that if defendant had updated his registration at the Santa Monica station, the
sex registration log and CSAR database would have corroborated his story.
       Defense counsel argued that defendant was not required to prove his lack of
knowledge of the registration requirements. Counsel claimed that defendant was
innocent if he “believed that he was allowed to register as a sex offender on any day
during the month of January—and he told you that was his belief based on what he was
told . . . . As long as he believed it, . . . whether it’s reasonable or not, as long as
[defendant] believed that, . . . that’s a defense. That’s a complete defense.”
       The court gave several instructions on the requisite mental state: “The defendant
is charged in count one with failing to register as a sex offender. To prove the defendant
is guilty of this crime, the People must prove[:]
       “[1.] That sex offense was committed for which he is required to register;
       “[2.] That the defendant . . . resided in Los Angeles;
       “[3.] That 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
January 24th; and


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        “[4.] That the defendant willfully failed to annually update his registration as a
sex offender with the police chief of that city within five working days of his birthday.
        “Someone commits an act willfully when he does it willingly or on purpose.
        “The defendant is not guilty of count one if he did not have the mental state
required to commit [the] crime because he did not know a fact or mistakenly believed a
fact.
        “If the defendant’s conduct would have been lawful under the facts as he believed
them to be, he did not commit count one.
        “If you find that defendant believed that [(1)] he was allowed to register as a sex
offender on any day during the month of January, or, [(2)] he was allowed to register as a
sex offender on any day during the month of January and he reasonably believed that he
registered as a sex offender when he was in the Santa Monica jail between January 13th
and 14th, 2015, he did not have the mental state required for count one.
        “If you have a reasonable doubt whether the defendant had the mental state
required for count one, you must find him not guilty of that crime.”
        During deliberations, the jury sent a note requesting the definition of “mental
state.” After discussing the request with counsel, the court responded that “[t]he mental
state for element 3 in Instruction 1170 is, ‘Actually knew.’ Two, the mental state for
element 4 in Instruction 1170 is ‘willfully’ which is defined in the instruction as willingly
or on purpose.”
        The jury also requested a reading of defendant’s testimony regarding his
incarceration in the Santa Monica jail, which was given. Later that day, the jury returned
a guilty verdict.
        At sentencing, the trial court considered defendant’s record of criminal
convictions and violation of a domestic relations restraining order. It held that the high
term was appropriate because defendant was “intentionally making it difficult to find
him,” was not a credible witness, had two prior convictions for failure to register, had two
prior sex crimes, and had violated a restraining order. The court imposed a three-year
sentence. This timely appeal followed.

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                                       DISCUSSION
       Defendant challenges the denial of his request to take judicial notice of the Florida
statute, which was relevant to his mistake of fact defense. We find no error.
       In order to violate a statute by failing to register, one must do so willfully, which
requires actual knowledge of the duty to register. (People v. Garcia (2001) 25 Cal.4th
744, 752 (Garcia).) The jury was instructed on both willfulness and actual knowledge,
which are separate but related elements of the offense. “Although notice alone does not
satisfy the willfulness requirement, a jury may infer from proof of notice that the
defendant did have actual knowledge [of the duty to register], which would satisfy the
[wilfullness] requirement.” (Ibid.)
       Because mistake of fact is an affirmative defense, defendant bears the burden of
proving that he honestly and reasonably believed he was permitted to update his
registration at any time during the month of January and thus had no criminal intent.
(See In re Jennings (2004) 34 Cal.4th 254, 279–380 [prosecution has burden to prove
knowledge and intent, but it is permissible in some cases to shift burden to defendant to
prove lack of criminal intent].) The state of mind instructions required the jury to
determine whether defendant actually believed he was allowed to update his registration
on any day during the month of January, and, if so, whether his belief that he had updated
his registration while in the Santa Monica jail was reasonable. By returning a guilty
verdict, the jury necessarily rejected defendant’s testimony on his state of mind.
       The Florida statute was only relevant to the mistake of fact defense if there was
evidence that defendant knew of or relied on its provisions. Because there was no
evidence of his reliance on the Florida statute, the court was justifiably concerned that
taking judicial notice of the statute would create a substantial danger of undue
prejudice—that the jury would infer, without factual support, that defendant had relied on
the Florida statute. In light of the trial court’s finding that the Florida statute was not
relevant, which is the only reasonable determination to be drawn from the record, the trial
court did not abuse its discretion by excluding it at trial. Defendant’s reliance on
Evidence Code section 453 is misplaced. (Evid. Code, § 350 [only relevant evidence

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admissible]); Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063
[“[a]lthough a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.),
only relevant material may be noticed [italics added”], partially overruled on other
grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)
       Defendant contends the court erred in deeming him subject to cross-examination
on his prior Florida convictions for failure to maintain his sex offender registration. We
disagree. Taking judicial notice of the Florida statute without allowing the prosecution to
question defendant about his knowledge and reliance on its provisions would be unfair.
We conclude that because reliance is “a fact peculiarly within the defendant’s
knowledge[, there] is no unfairness or hardship in requiring the defendant to assume the
burden of presenting evidence of the facts on which he or she relies.” (People v. Salas
(2006) 37 Cal.4th 967, 982.)
       The assertion that the People lacked evidence of the grounds for defendant’s prior
convictions is not supported by the record. In addition to making a valid offer of proof,
the prosecutor explained he was waiting to produce evidence of the prior convictions at
the bifurcated hearing.
       Under the applicable standard of review, which is the deferential abuse of
discretion standard, a trial court’s evidentiary ruling is reversed only if it was
““‘arbitrary, whimsical, or capricious as a matter of law . . . .’” [Citation.]” (People v.
Robertson (2012) 208 Cal.App.4th 965, 991.) Applying that standard here, we find no
abuse of discretion.
       In any event, we conclude the alleged error was not prejudicial. Evidence of
defendant’s actual knowledge of the registration requirements was strong. It was
undisputed that he initialed the provision on the registration form requiring annual
updates to be made within five working days of his birthday. The exhibits and testimony
allowed the jury to infer that his failure to update his registration within five days of his
birthday was both knowing and willful. (See Garcia, supra, 25 Cal.4th at p. 752.) In
light of the substantial evidence of guilt, it is not reasonably probable defendant would


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have obtained a more favorable result if judicial notice had been taken of the Florida
statute. (People v. Watson (1956) 46 Cal.2d 818, 836.)


                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.
We concur:



       MANELLA, J.



       COLLINS, J.




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