Filed 6/10/15 P. v. Avila CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,                                                                                  C072432

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F04132)

         v.

ALEXANDER AVILA,

                   Defendant and Appellant.




         Defendant Alexander Avila appeals from a judgment of conviction following a
jury trial. Defendant, a convicted sex offender, failed to register his true residential
address after his release from custody. Instead, for the second time, he falsely registered
an address where he was not residing. He was charged with failing to register his new
address within five working days of change of address. (Pen. Code, § 290.018,
subd. (b).1) The prosecution also alleged that defendant suffered four prior serious felony




1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.

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convictions under section 288, subdivisions (a) and (b). (§§ 667, subds. (b)-(i), 1170.12.)
A jury found defendant guilty and defendant admitted the single serious felony
conviction allegation upon which the prosecution proceeded. The court sentenced
defendant to six years in prison.
        On appeal, defendant contends that the trial court prejudicially erred in modifying
the CALCRIM No. 3404 instruction. He contends the modification altered the
prosecution’s burden of proof.
        We conclude the trial court erred, but the error is harmless. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
                                The Prosecution’s Evidence
        The parties stipulated that defendant previously suffered convictions for felony sex
offenses on October 4, 1984, and October 19, 1993, which require him to register his
residence with law enforcement for the rest of his life pursuant to section 290.
        On May 29, 2012, defendant registered at the office of the Sacramento County
Sheriff’s Department Sexual Assault Felony Enforcement (“SAFE”) Team. Detective
John Foster described the procedural requirements of sex offender registration,
explaining that registrants must initial and sign the registration form to acknowledge that
they have read and understand the requirements. He further explained that registrants
must provide their address of residence or register as transient.2 The term “residence”
was defined on the form presented to defendant as follows: “one or more addresses at
which a person regularly resides, regardless of the number of days or nights spent there,
such as a shelter or structure that can be located by a street address, including but not
limited to houses, apartment buildings, motels, hotels, homeless shelters, recreational
vehicles, and other vehicles.” On May 29, defendant listed 4619 Ringneck Court,




2   Transient sex offenders are required to register every 30 days. (§ 290.011, subd. (a).)

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Sacramento on the registration form as his residence (the “Ringneck address”). He also
provided an address he frequented, 9233 Earl Fife Drive, Elk Grove, and an employment
address, 7039 Kilkenny Court, Sacramento (the “Kilkenny address”).
      Detective Foster testified that his investigation began on June 12, 2012, after
probation officers did a compliance check at defendant’s registered residence, the
Ringneck address, and found that he was not living there. Detective Foster and Deputy
Dennis Peyton went to the Ringneck address the following day and spoke to a resident at
that address, Joeandrea Rushin, who confirmed defendant did not live there. Defendant’s
probation officer informed Detective Foster that defendant could be residing at the
Kilkenny address.
      On June 14, 2012, Detective Foster and Deputy Peyton went to the Kilkenny
address and found defendant there. Jimmy Durham, the owner of the residence at that
address, told them that defendant had been living there for nearly four weeks. Deputy
Peyton asked defendant whether he was aware that they were looking for him, and
defendant replied, “[Y]es.” They then arrested defendant.
      Durham testified that he and defendant were members of the same congregation of
Jehovah’s Witnesses. He indicated that in May 2012, one of the elders of their church
approached him about defendant needing a place to stay after his release from custody.
Durham explained that he understood that defendant would only need to stay with him
for “two or three days” until defendant could make more permanent living arrangements.
However, defendant stayed with Durham at the Kilkenny address for nearly four weeks.
Durham “would question [defendant] from time to time as to what avenues he was
approaching about finding a place of his own” and reminded defendant that his
agreement was only for a couple days. At one point, defendant asked if he could live
there and pay him $300 per month in rent. Durham told defendant that he did not want
defendant to live in his home on a long-term basis. Durham offered defendant some
money to clear out flowerbeds around his house because he knew defendant needed

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money. However, defendant did not complete the project and Durham testified that this
was not a “form of employment.”
       Flordelisa Liriano, defendant’s former mother-in-law and homeowner of the
Ringneck residence, testified that defendant never lived at the Ringneck address
following his release. She further testified that defendant knew he could not live with her
because both her and her roommate, Joeandrea Rushin, are Jehovah’s Witnesses and
under their religious doctrine, they could not live with a man who is not their brother or
husband. Rushin testified that defendant had not lived at the Ringneck address at any
time since she had moved in, which was in April or May 2011.
       Dinorah Torza, defendant’s former wife and Liriano’s daughter, testified that
following defendant’s arrest, he asked her to help him make it look like he was living at
the Ringneck address. She said that she agreed to help him by putting his clothing in
Liriano’s home and telling the defense investigator that defendant was living there.
       This was not the first occasion when defendant registered the Ringneck address as
his place of residence. The trial court took judicial notice of a prior case in which
defendant pleaded no contest in May 2011 to failing to properly register as a sex offender
in violation of section 290.018, subdivision (b). Defendant had registered on February 2,
2011, listing the Ringneck address as his residence. However, Torza testified that at that
time, defendant was living with her at 8020 Walerga Road (the “Walerga address”). She
testified that defendant continued living there with her even after she filed for divorce
because it was difficult for her to “get rid of this person.” On May 4, 2011, she called the
sheriff’s department to assist her in removing defendant from her home.
       Deputy Aaron Haydel responded to Torza’s call. Deputy Haydel testified that
Torza informed him that defendant was a registered sex offender but was not registered to
the Walerga address. Defendant admitted to Deputy Haydel that he was a sex offender
and his registered residence was the Ringneck address. Defendant told Deputy Haydel



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that he “periodically stayed at the Walerga address, but he usually went back to the
Ringneck address.” Deputy Haydel arrested defendant for failing to register.
       Defendant ultimately pleaded no contest for failing to properly register as a sex
offender for the first time he falsely listed the Ringneck address as his place of residence.
       Prior to his first section 290 violation, defendant had had significant registration
experience, first registering as transient on April 14, 2010, and then registering as
transient approximately every 30 days through January 18, 2011, for a total of 11
registrations. However, even those registrations were false. Torza testified that
defendant had been living with her at her house on Legacy Court from April 2010 until
he moved with her to the Walerga Road address on January 1, 2011. It was on
February 2, 2011, while defendant was still living with Torza, that he changed his
registration from transient to the Ringneck address as his place of residence.
                                     Defense Evidence
       Defendant, representing himself at trial, did not testify in his own defense.
However, he presented the testimony of Amani Jones, his probation officer. Jones
testified that when defendant registered, he listed Liriano and Rushin as the occupants of
the Ringneck address and the total number of occupants as “[t]wo.” However, Jones
explained that because not everyone enters the total number of occupants correctly, the
probation department “go[es] off of” the address listed as the registrant’s residence.
Additionally, on cross-examination, Jones testified that she clarifies with each registrant
individually that the registrant actually resides at the listed residence address.
       Defendant recalled Torza, and she testified that she sold the vehicle defendant had
been driving while he was in custody on the 2011 offense. She did not know whether
defendant had obtained any other vehicles thereafter. However, she did see him on
June 11, 2012, right after he got out of jail. He was waiting for her in a residential area in
downtown Sacramento where he knew she parked her car while she was at work. In his



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closing argument, defendant contended Torza’s testimony showed he had no vehicles and
that he had difficulty getting around.
                                   Verdict and Sentencing
       The jury found defendant guilty. The prior conviction allegations were bifurcated.
The prosecution proceeded with only one of the alleged prior strike convictions, a 1984
conviction of committing a lewd act upon a child in violation of section 288,
subdivision (a). Defendant admitted the prior conviction.
       The trial court denied defendant’s motion for a new trial and sentenced defendant
to six years in prison calculated as follows: the upper term of three years for failing to
register, doubled because of the prior strike conviction.
                                         DISCUSSION
    I. Additional Background and Defendant’s Instructional Error Contentions
       In order to prove that defendant violated section 290.018, subdivision (b), the
prosecution had the burden of showing that defendant knew he had a duty to register and
that he “willfully” failed to register as required.
       During the instruction conference, defendant requested that the court further
instruct the jury that a failure to register is not “willful” when it is “the result of
misinformation or lack of transportation.” Defendant contended this would be a proper
instruction under People v. Johnson (1998) 67 Cal.App.4th 67, 73 [“The instructions
given by the trial court permitted the jury to find that defendant’s failure to register was
not willful, but rather the result of misinformation and lack of transportation.”].
       The court granted defendant’s request and drafted a modification, adding the
following as a second paragraph to CALCRIM No. 3404: “you may find the defendant
not guilty if you find that the defendant’s failure to register [the Kilkenny address] as a




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residence was not intentional, but rather the result of misinformation or lack of
transportation.”3 (Italics added.) Defendant agreed to the proposed instruction.
       On appeal, defendant contends that the court prejudicially altered the
prosecution’s burden of proof “by requiring the jury to ‘find’ either misinformation or
lack of transportation before it ‘may’ find [defendant] not guilty.” Defendant contends
that “a proper instruction would have informed the jury that it must acquit [defendant] if
it had a reasonable doubt as to whether he failed to register as a result of misinformation
or lack of transportation. The court’s modified instruction altered the burden of proof in
violation of [defendant’s] rights to equal protection and due process rights guaranteed to
him under the Fifth and Fourteenth Amendments.” We agree that the instruction was
potentially confusing, but we conclude that any error was harmless.
                                       II. Analysis
                     A. Modified Instruction CALCRIM No. 3404
       “The trial court is charged with instructing upon every theory of the case
supported by substantial evidence, including defenses that are not inconsistent with the
defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “The
trial court must instruct even without request on the general principles of law relevant to
and governing the case. [Citation.] That obligation includes instructions on all of the
elements of a charged offense. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233,




3 With the trial court’s second paragraph added to the standard CALCRIM No. 3404, the
instruction read: “The defendant is not guilty of Count 1, Failing to Register as a Sex
offender if he acted without the mental state required for that crime, but acted instead
accidentally. You may not find the defendant guilty unless you are convinced beyond a
reasonable doubt that he acted with the required mental state. [¶] Further, you may find
the defendant not guilty if you find that the defendant’s failure to register 7039 Kilkenny
Drive, Sacramento, CA 95842 as a residence was not intentional, but rather the result of
misinformation or lack of transportation.” (Italics added.)

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1311.) We review de novo whether jury instructions correctly state the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.)
       As an initial matter, the People contend defendant’s appellate claim is forfeited
because it was not raised below. We reject this argument. Because defendant challenges
the instruction on the ground that it misstated the intent element of the offense, he was
not required to raise the issue at trial, and we review his claim on the merits. (See People
v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; see also People v. Mason (2013) 218
Cal.App.4th 818, 823 [“Instructional error as to the elements of an offense is not waived
by trial counsel’s failure to object.”].)
       By telling the jury “you may find the defendant not guilty if you find that the
defendant’s failure to register [the Kilkenny address] as a residence was not intentional,
but rather the result of misinformation or lack of transportation,” the instruction could be
read as if a finding of not guilty was optional if defendant failed to register because he
was misinformed or lacked the transportation. Courts are required to give “correct
instruction regarding the intent necessary to commit the offense and the union between
that intent and the defendant’s act or conduct.” (People v. Alvarado (2005) 125
Cal.App.4th 1179, 1185.) Here, the modified instruction went to the key element of the
crime disputed in this case -- defendant’s intent. Accordingly, we conclude that the court
erred in giving the second paragraph in the modified CALCRIM No. 3404 instruction.
                                     B. Harmless Error
       While we do find error in this case, we conclude the error was harmless.
Instructional error that relieves the prosecution of the burden of proving beyond a
reasonable doubt each element of the charged offense or improperly describes an element
of an offense is subject to harmless error review under the Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman), beyond a reasonable doubt standard for
assessing prejudice. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) That inquiry
requires us to ask “whether it appears ‘beyond a reasonable doubt that the error

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complained of did not contribute to the verdict obtained.’ [Citation.]” (Yates v. Evatt
(1991) 500 U.S. 391, 403 [114 L.Ed.2d 432].) A reviewing court conducting a Chapman
harmless error analysis looks to the “ ‘whole record’ ” to evaluate the error’s effect on the
jury’s verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367 (Aranda).) Looking at the
record as a whole, we conclude beyond a reasonable doubt that the error here did not
contribute to the verdict.
       First, we look to the evidence. Chapman harmless error analysis related to
instructional error typically includes review of the strength of the prosecution’s case.
(Aranda, supra, 55 Cal.4th at p. 367.) The evidence against defendant on the charged
offense was overwhelming. The evidence established that defendant was sophisticated in
his knowledge of the registration requirements, having registered multiple times before.
In fact, defendant knew how to register as transient in the event that he did not have a
more permanent residence available, since he registered as transient on April 14, 2010,
and registered as transient every month thereafter through January 18, 2011. Yet at trial,
Torza testified that defendant lived with her at her house on Legacy Court during this
time, from April 2010 until he moved with her to the Walerga Road address on January 1,
2011. Additionally, defendant pleaded no contest in 2011 to failing to properly register
as a sex offender by falsely listing the same address as his residence that he listed in this
case, the Ringneck address. Thus, the evidence demonstrated that defendant failed to
register his address of residence accurately during every registration since April 14, 2010,
twice using the Ringneck address when, in fact, he never lived there. Moreover, the
evidence showed defendant’s consciousness of guilt when, after he was aware of the
second investigation, he persuaded his ex-wife to put his clothes at the Ringneck address
to make it appear as if he lived there. In addition to the aforementioned evidence
showing defendant’s intent, defendant’s probation officer testified that she “clarif[ies]
one on one” with each registrant what constitutes a residence, and apart from that
advisement the form defendant executed expressly defined residence in a way that

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included the Kilkenny address where defendant was residing. Furthermore, defendant
did not present any persuasive evidence from which the jury could find that when
registered, he was misinformed or confused about the fact he was being asked to tell them
where he actually resided as opposed to an address where he did not actually reside. The
evidence overwhelmingly shows that defendant knew he had a duty to register the
Kilkenny address and his failure to do so was willful and not the product of
misinformation.
       Second, we look to the prosecution’s argument to the jury. In determining
whether an instructional error is harmless, we may consider the arguments of counsel.
(People v. Jennings (2010) 50 Cal.4th 616, 676, 678; People v. Avena (1996) 13 Cal.4th
394, 417; People v. Mathson (2012) 210 Cal.App.4th 1297, 1330.) There was nothing in
the prosecutor’s closing arguments that would have misled the jury regarding
misinformation or lack of transportation. Indeed, the prosecutor never discussed the
erroneous language in the second paragraph in the modified CALCRIM No. 3404. Nor
did she argue that the jury could disregard claims of misinformation or transportation
difficulties or find defendant guilty even if it found that he failed to register as a result of
misinformation or transportation problems.
       As for lack of transportation, the prosecutor made it clear that the prosecution was
not contending defendant missed a registration deadline. To the contrary, the prosecutor
contended defendant showed up and registered, but he registered an address where he
was not actually residing. This theory was well supported by the record.
       As for the notion that defendant’s failure to register the Kilkenny Drive address
and his registration of the Ringneck address was based on misinformation and not
intentional, the prosecutor argued defendant’s conduct was intentional based on the
evidence related to his past registrations and the evidence indicating he never registered
where he was actually living -- with his ex-wife -- and he initialed and signed the
registration forms, indicating he understood the advisements contained in those forms.

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The prosecutor argued, “This is not an accident. This is not a mistake. It was really part
of an ongoing plan that he has . . . shown through all of his registrations, and also through
his contact with probation.” He did not tell the truth to law enforcement. Nothing the
prosecutor said could have misled the jury into believing it could find the requisite intent
even if defendant was misinformed or lacked of transportation.
       Finally, we look to the instructions as a whole instead of focusing on the erroneous
paragraph in the modified CALCRIM No. 3404 in isolation. (Jennings, supra, 50 Cal.4th
at p. 677 [“When an appellate court addresses a claim of jury misinstruction, it must
assess the instructions as a whole, viewing the challenged instruction in context with
other instructions, in order to determine if there was a reasonable likelihood the jury
applied the challenged instruction in an impermissible manner.”].) This is not a case
where the trial court neglected to instruct the jury on an element. The court instructed the
jury that “[t]he crime charged in this case requires proof of the union, or joint operation,
of act and wrongful intent” and that defendant must not only “intentionally fail to do the
required act, but must do so with a mental state.” The jury was told that the mens rea
elements of the charged offense are that defendant knew he had a duty to register the
Kilkenny Drive address and that he willfully failed to register that address. It was further
explained that “[s]omeone commits an act willfully when he does it willingly or on
purpose.” The instruction further defined “residence” as “one or more addresses where
someone regularly resides, regardless of the number of days or nights spent there, such as
a shelter or structure that can be located by a street address. A residence may include, but
is not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and
recreational and other vehicles.” This was the same definition of “residence” provided to
defendant on the forms he initialed, a definition that can be found in the statute.
(§ 290.011, subd. (g); see also People v. Gonzales (2010) 183 Cal.App.4th 24, 35.) And
the first paragraph of the modified CALCRIM No. 3404 correctly stated, “The defendant
is not guilty [of failing to register] if he acted without the mental state required for that

                                              11
crime, but acted accidentally. You may not find the defendant guilty unless you are
convinced beyond a reasonable doubt that he acted with the required mental state.”
       Based on the whole record before us, we conclude beyond a reasonable doubt that
the trial court’s failure to use the word “must” instead of “may” was harmless when it
told the jury “you may find the defendant not guilty if you find that the defendant’s
failure to register [the Kilkenny address] as a residence was not intentional, but rather the
result of misinformation or lack of transportation.” (Italics added.)
                                      DISPOSITION
       The judgment is affirmed.



                                                        MURRAY                 , J.



We concur:



      NICHOLSON             , Acting P. J.



      BUTZ                  , J.




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