People v. Ruther CA2/6 ( 2021 )

Filed 5/19/21 P. v. Ruther CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B300935
(Super. Ct. No. BA474315)
Plaintiff and Respondent, (Los Angeles County)
v.
DAVID ELMO RUTHER,
Defendant and Appellant.
David Elmo Ruther appeals from the judgment entered
after a jury had convicted him of failing to register as a sex
offender in violation of Penal Code section 290, subdivision (b).1
The jury found true one prior strike within the meaning of
California’s “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d).) Appellant was sentenced to prison for 32 months.
Appellant contends that the evidence is insufficient to
support his conviction and that the trial court erroneously failed
1 All statutory references are to the Penal Code.
to sua sponte define a word used in a standard jury instruction.
We affirm.
Facts
Appellant concedes: “[T]he evidence demonstrated [he]
suffered a prior out-of-state conviction in 1990 and was
discovered living in a homeless tent in downtown Los Angeles in
2017. Appellant was convicted of rape in the first degree and
sexual abuse in the second degree, in the State of Oregon. Due to
this conviction, he was required to register in California as a sex
offender pursuant to Penal Code section 290.”
In November 2017, the Los Angeles City Attorney informed
Officer Elbin Quintanilla that appellant was living in Los
Angeles and had not registered as a sex offender. Quintanilla
discovered that appellant had made contact with the police at a
“homeless encampment” in downtown Los Angeles. Quintanilla
obtained a photograph of appellant. He went to the homeless
encampment, spoke to people there, and showed them the
photograph. Several people recognized appellant. They said he
was living in a nearby tent and “frequented the Starbucks on
Cesar Chavez and Broadway.” On at least three occasions
Quintanilla and his partner, Officer Villalobos, went to the tent
to look for appellant, but he was not there.
Months later on September 29, 2018, Officer Villalobos saw
appellant outside the Starbucks on Cesar Chavez and Broadway
in downtown Los Angeles. Villalobos informed him that, because
of his Oregon conviction, he was required to register as a sex
offender in California. Appellant “stated something about it was
an incident that occurred with his wife, that it shouldn’t have
gone to court, that he . . . shouldn’t have to register.” Villalobos
said that, “due to the conviction, he has to . . . register.”
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Appellant replied that “he didn’t care, he is not gonna register.”
Villalobos warned that if he did not register, he would be
arrested. Appellant responded, “I don’t care. I will see you in
court.”
Villalobos told appellant to register at a police station in
the City of Los Angeles. He gave appellant a business card with
the station’s address. The station was “no more than two miles
[away].” Villalobos did not arrest appellant. He “wanted to give
[appellant] time to go to the station to register.” Appellant did
not register.
Sufficiency of the Evidence
“The purpose of the section 290 registration requirement is
to ensure that convicted sex offenders are readily available for
police surveillance.” (People v. Williams (2009) 171 Cal. App. 4th
1667, 1672.) “[A] sex offender [who fails to register] is guilty of a
felony only if he ‘willfully violates’ the registration or notification
provisions of section 290. . . . Accordingly, a violation of section
290 requires actual knowledge of the duty to register.” (People v.
Garcia (2001) 25 Cal. 4th 744, 752.) Appellant claims that the
evidence is insufficient to show that he “had actual knowledge or
notice adequate to charge him with willful failure to register
under Penal Code section 290.”
“In assessing the sufficiency of the evidence, we review the
entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.
[Citations.] Reversal on this ground is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’” (People v. Bolin
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(1998) 18 Cal. 4th 297, 331.) “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.” (People v.
Jennings (2010) 50 Cal. 4th 616, 638-639.)
Based on appellant’s conversation with Officer Villalobos, a
reasonable trier of fact could find beyond a reasonable doubt that
appellant had actual knowledge of his duty to register. Appellant
was aware of the Oregon conviction but said he should not have
to register because the conviction was based on an incident
involving his wife. Officer Villalobos informed appellant that he
was required to register and that he would be arrested if he did
not register. Appellant replied that “he didn’t care, he is not
gonna register,” and he “will see [Villalobos] in court.” Officer
Villalobos testified: “[Appellant] was responsive. He knew
exactly what I was talking about . . . .”
Appellant argues, “[T]here was insufficient evidence to
prove beyond a reasonable doubt that [he] ‘resided’ within Los
Angeles County requiring him to register with the local law
enforcement agency as a sex offender.” Section 290, subdivision
(b) provides that a sex offender “shall register with the chief of
police of the city in which the person is residing . . . within five
working days of coming into . . . any city . . . in which the person
temporarily resides . . . .”
A reasonable trier of fact could find beyond a reasonable
doubt that appellant permanently or temporarily resided in the
City of Los Angeles. In November 2017 Officer Quintanilla
learned that appellant had made contact with the police at a
homeless encampment in downtown Los Angeles. Several people
at the homeless encampment told Quintanilla that appellant was
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living in a nearby tent. In September 2018 Officer Villalobos saw
appellant outside a Starbucks in downtown Los Angeles.
Appellant argues that “there was no substantial credible
evidence demonstrating appellant continuously lived in Los
Angeles County.” But the statute required registration if
appellant lived in Los Angeles for only five consecutive working
days, and the evidence was sufficient to satisfy the five-day rule.
(See § 290, subd. (b); People v. Davis (2002) 102 Cal. App. 4th 377,
382 [“A sex offender who enters the City of Los Angeles in
January and remains there for five consecutive working days
must register with the LAPD no later than the fifth consecutive
working day”].)
Jury Instructions
The trial court gave CALCRIM No. 1170 on the elements of
a violation of section 290. The instruction provided that the
People must prove that “[t]he defendant resided in Los Angeles,
California.” Appellant maintains that the trial court erroneously
failed to instruct sua sponte on “the meaning of the term ‘reside.’”
He asserts: “[A]n appropriate instruction . . . would have defined
‘reside’ as follows: ‘Reside means more than passing through or
presence for a limited visit. To reside is to temporarily or
permanently dwell in a 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.’”
Appellant forfeited his claim of error because he did not ask
the court to instruct on the meaning of “reside.” “‘“Generally, a
party may not complain on appeal that an instruction correct in
law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or
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amplifying language.”’” (People v. Catlin (2001) 26 Cal. 4th 81,
149.)
If the claim is not forfeited, it is without merit. “In [People
v.] McCleod [(1997)] 55 Cal. App. 4th 1205, [1217-1219], the court
stated that the term ‘residence,’ as used in section 290, was a
commonly understood term, without technical meaning, that did
not have to be defined by the court. The McCleod court concluded
the term was easily understood by persons of common
intelligence as connoting ‘“more than passing through or presence
for a limited visit.”’ [Citation.] The court in McCleod therefore
concluded: ‘Neither the courts nor the Legislature has seen the
need to further define the common term of residence for section
290. Nor do we.’ [Citation.]” (People v. Gonzales (2010) 183
Cal. App. 4th 24, 36.) Since “residence” need not be defined by the
trial court, it follows that the common term “reside” as used in
section 290 also need not be defined. “The law is settled that
when terms have no technical meaning peculiar to the law, but
are commonly understood by those familiar with the English
language, instructions as to their meaning are not required.”
(People v. Anderson (1966) 64 Cal. 2d 633, 639.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Ray G. Jurado, Judge
Superior Court County of Los Angeles
______________________________
Daniel G. Koryn, under appointment by the Court of
Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jonathan J. Kline, Shezad H.
Thakor, Deputy Attorneys General, for Plaintiff and Respondent.