Wright v. Superior Court

MOSK, J.

I dissent. The majority’s singular misdefinition of a continuing offense promises to create serious difficulty for the trial and appellate courts that must follow it. Today’s result, moreover, is inconsistent with the teaching of Toussie v. United States (1970) 397 U.S. 112 [90 S.Ct. 858, 25 L.Ed.2d 156] (Toussie), among other cases. And precisely for the reasons the majority identify—e.g., the indefinite extension of the statute of limitations and the elimination of ex post facto protections—they create deleterious policy that undermines a legislative balance between the needs to protect the public from recidivism and to protect individuals against arbitrary and retroactive punishment. The resulting imbalance may cause a miscarriage of justice against defendant. We should affirm the Court of Appeal’s judgment and leave it to the Legislature to change the statute if it desires to do so.

The People, represented by a district attorney, prosecuted defendant for violating subdivision (f) of Penal Code section 290. They first filed a felony information even though they alleged that defendant violated subdivision (f) “[o]n or about and between November 1994 and March 23, 1995.” In 1994 the violation was, with respect to the charges against defendant, a misdemeanor. (Former § 290, subd. (g)(1).) The People acknowledged that their pleading was defective and sought leave to amend it to charge him with violating the law “[o]n or about and between February 1, 1995 and March 23, 1995.”

In 1995 a violation of subdivision (f) of Penal Code section 290 was a felony. (Id., subd. (g)(2).) At a hearing, defendant aptly described this procedure as giving the People “the privilege of picking and choosing . . . to decide when the crime was committed . . . .” “In other words,” he stated, “the prosecution by their very pleading could willy nilly decide to ignore the very proof that they necessarily rely upon, which is necessarily tied up in November or December, 1994 and simply assert a date of January [sic] 1st.”

The court nevertheless ruled that “[fjailure to register is [a] continuing offense” and allowed the People to file the amended information.

Defendant contended that this procedure violates the ex post facto clauses (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, §9). He renews that contention in this court. He is correct. Properly understood, a continuing offense was not charged, and therefore it could not be charged as a felony.

Penal Code section 290, subdivision (f), provided in 1994, when defendant committed his offense: “If any person required to register pursuant to this section changes his or her residence address, the person shall inform, in writing within 10 days, the law enforcement agency or agencies with whom he or she last registered of the new address. The law enforcement agency or agencies shall, within three days after receipt of this information, forward it to the Department of Justice. The Department of Justice shall forward appropriate registration data to the law enforcement agency or agencies having local jurisdiction of the new place of residence.” Its language was identical in all material respects in 1995.

We interpret the federal and state ex post facto clauses identically. (People v. McVickers (1992) 4 Cal.4th 81, 84 [13 Cal.Rptr.2d 850, 840 P.2d 955]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-296 [279 Cal.Rptr. 592, 807 P.2d 434].) Accordingly, United States Supreme Court precedent not only is binding with respect to the federal clause, but is persuasive with respect to the clause in the California Constitution.

“The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government. [Citation.] But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” (Marks v. United States (1977) 430 U.S. 188, 191-192 [97 S.Ct. 990, 992-993, 51 L.Ed.2d 260].)

In California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506-507, footnote 3 [115 S.Ct. 1597, 1602, 131 L.Ed.2d 588, 594, 595], the court clarified that the ex post facto clause applicable to the states is to be analyzed under the analytical framework set forth in Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30]. Collins reaffirmed (id. at pp. 42-43, 44 [110 S.Ct. at pp. 2719-2720]) the understanding of the ex post facto clause provided in Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [46 S.Ct. 68, 68, 70 L.Ed. 216], namely “that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." But Collins explained that the third prong of Beazell’s formulation is “linked to the prohibition on alterations in ‘the legal definition of the offense’ or ‘the nature or amount of the punishment imposed for its commission.’ ” (497 U.S. at p. 50 [110 S.Ct. at p. 2723], quoting Beazell.) Hence Collins was able to simplify Beazell, and summarized: “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Id. at p. 43 [110 S.Ct. at p. 2719].) In Morales, the court reiterated this understanding. (514 U.S. at p. 504 [115 S.Ct. at p. 1601, 131 L.Ed.2d at p. 594]; see also Lynce v. Mathis (1997) 519 U.S._[117 S.Ct. 891, 137 L.Ed.2d 63].)

Hence “[t]he ex post facto clause of the Constitution ‘forbids the application of any law or rule that increases punishment for pre-existing conduct.’ [Citations.] Where a ‘continuing offense’ straddles the old and new law, however, applying the new is recognized as constitutionally sound.” (U.S. v. Regan (1st Cir. 1993) 989 F.2d 44, 48.) That is so because “[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date.” (Weaver v. Graham (1981) 450 U.S. 24, 31 [101 S.Ct. 960, 965, 67 L.Ed.2d 17].)

What the majority do today is to misconstrue subdivision (f) of Penal Code section 290 as a continuing offense, thereby creating the possibility of increased retroactive punishment to defendant’s detriment. I believe the majority’s decision so radically departs from commonly understood principles of commission and completion of crimes as to be unforeseeable to this defendant or any other individual.

Only by heaping error upon error are the majority able to reach such a surprising result.

The majority’s first error lies in their definition of a continuing crime. Taking California law to the outer orbit of an obscure 1978 Maryland decision, the majority identify a continuing offense as “ ‘marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.’ ” (Maj. opn., ante, at p. 525, quoting Duncan v. State (1978) 282 Md. 385, 390 [384 A.2d 456, 459].) But Duncan’s definition, unsupported by any authority, is erroneous—at a minimum, it is too vague, and it puts the wrong foot forward.

Failing to observe a continuing duty and continuing to engage in proscribed conduct are distinct matters. The first, an issue of status, has nothing to do with the doctrine of continuous offenses. “The theory of the [majority] is that by doing nothing [further, defendant] renewed his crime every day to the date of the trial .... This seems to me not to be in accord with authority, [even] when the thing that is made a crime is the failure to perform a continuing duty, when nothing at all happens after the crime became complete. In United States v. Irvine [(1879)] 98 U.S. 450, 25 L.Ed. 193, the crime was for an agent or attorney ‘wrongfully to withhold’ pension money from a pensioner. The duty to pay it over was certainly a continuing one, but the court held the statute of limitations applied, and began to run so soon as it was evident that the withholding was wrongful.” (Fogel v. United States (5th Cir. 1947) 162 F.2d 54, 56 (dis. opn. of Sibley, J.).)

In sum, the crime must forbid conduct that continues (U.S. v. Midstate Co. (1939) 306 U.S. 161,166 [59 S.Ct. 412, 414, 83 L.Ed. 563]), not just a status that continues as the majority, following the erroneous decisions in Duncan v. State, supra, 282 Md. 385 [384 A.2d 456], and State v. Morse (1969) 54 N.J. 32 [252 A.2d 723], would have it. Indeed, the majority’s analysis falls of its own weight: it states “ ‘each day’s acts [leaving the offender’s location unknown] bring a renewed threat.’ ” (Maj. opn., ante, at p. 531.) How, paraphrasing the majority’s words, can it be an act to leave one’s own location unknown? No conduct is occurring—nothing is happening.¹

Unlike the quixotic two-decades-old Maryland decision² on which the majority principally rely, other jurisdictions have made sense of the continuing-offense doctrine. “ ‘A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.’ ” (U.S. v. Midstate Co., supra, 306 U.S. at p. 166 [59 S.Ct. at p. 414].) A crime should not be defined as continuing “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” (Toussie, supra, 397 U.S. at p. 115 [90 S.Ct. at p. 860].) The Model Penal Code contains a similar caveat. (Model Pen. Code, § 1.06, subd. (4).)

U.S. v. McGoff (D.C. Cir. 1987) 831 F.2d 1071 [265 App.D.C. 312], accurately explained the requirement of continuing proscribed conduct: “The notion of ‘continuing offense’ has traditionally identified a type of offense fundamentally different from most known to the common law. . . . [A] criminal offense is typically completed as soon as each element of the crime has occurred. For example, a larceny is completed as soon as there has been an actual taking of the property of another without consent, with the intent permanently to deprive the owner of its use. The offense does not ‘continue’ over time. The crime is complete when the act is complete. A ‘continuing offense,’ in contrast, is [one that consists of] an unlawful course of conduct that does perdure.” (Id. at p. 1078, italics added.)

An interpretation of bigamy and bigamous cohabitation prohibitions illustrates the distinction between conduct and status. It has been held that bigamy is not a continuing crime, although the accused’s status as a bigamist may well “perdure,” to use McGoff s term, but that bigamous cohabitation is a continuing crime because the proscribed conduct of bigamous cohabitation does perdure. (United States v. Lee (N-M.C.M.R. 1991) 32 M.J. 857, 860-861.)

Hence, “[t]he classic example of a continuing offense is conspiracy.” (U.S. v. McGoff, supra, 831 F.2d at p. 1078.) The crime by its nature continues until the last act is done. (Toussie, supra, 397 U.S. at p. 122 [90 S.Ct. at p. 864].) Similarly, such crimes as possession of forbidden material and kidnapping, a substantial component of which is the continuing detention of another against his or her will, are among the few continuing offenses. (E.g., People v. Bland (1995) 10 Cal.4th 991, 995, 999 [43 Cal.Rptr.2d 77, 898 P.2d 391] [possession of cocaine base for sale]; People v. Keehley (1987) 193 Cal.App.3d 1381, 1385-1386 [239 Cal.Rptr. 5] [unlawful possession of food stamps]; Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 407-408 [173 Cal.Rptr. 906] [kidnapping]; see also People v. Ordonez (1991) 226 Cal.App.3d 1207, 1231 [277 Cal.Rptr. 382] [same].)

The majority’s second error, which arises naturally from their first, lies in the interpretation of the statute at issue. Defendant’s alleged offense could not be continuous under the crime charged—he did not continue to fail to “inform, in writing within 10 days, the law enforcement agency or agencies with whom he or she last registered of the new address.” (Pen. Code, former § 290, subd. (f), italics added.) He violated the statute instantaneously, finally and completely 10 days after he moved without informing the relevant agencies, if he did so. “[N]othing at all happened] after the crime became complete.” (Fogel v. United States, supra, 162 F.2d 54, 56 (dis. opn. of Sibley, J.); to the same effect, U.S. v. McGoff, supra, 831 F.2d at p. 1078.)

The offense in this case is legally indistinguishable from that at issue in the Vietnam-era Toussie case, wherein the United States Supreme Court found the offense not to be continuing. Toussie was convicted of failing to register for the draft. He argued that the statute of limitations had run. The court agreed, prefacing its discussion by explaining that “ ‘[t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.’ ” (397 U.S. at p. 115 [90 S.Ct. at p. 860].)

The law in Toussie required that male United States citizens between 18 and 26 years old register for the draft. It further provided, via presidential proclamation, that “ ‘[p]ersons who were bom on or after September 19, 1930, shall be registered on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.’ Since Toussie, an American citizen, was bom on June 23, 1941, he was required to register sometime between June 23 and June 28, 1959. He did not do so during that period or at any time thereafter. On May 3, 1967, he was indicted for failing to register and that indictment led to the conviction under review.” (397 U.S. at p. 113 [90 S.Ct. at p. 859], fn. omitted.)

The court held that a five-year statute of limitations applied to bar the prosecution. It explained the reasons for statutes of limitation, and commented: “These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances .... These considerations do not mean that a particular offense should never be constmed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” (Toussie, supra, 397 U.S. at p. 115 [90 S.Ct. at p. 860].)

Having explained that a statute must either explicitly declare that a crime is of a continuing nature, or the definition of the crime must require such a conclusion, Toussie gave an example of the second type: “Cf. United States v. Cores, 356 U.S. 405 [78 S.Ct. 875, 2 L.Ed.2d 873] (1958), in which the Court held, for venue purposes, that the statute prohibiting alien crewmen from remaining in the United States after their permits expired contemplated that the offense would continue as long as the crewman remained in this country and the statute of limitations did not start to run when he first overstayed his permit. In that case we stated that ‘[s]ection 252 (c) punishes “[a]ny alien crewman who willfully remains in the United States in excess of the number of days allowed.” The conduct proscribed is the affirmative act of willfully remaining, and the crucial word “remains” permits no connotation other than continuing presence.’ Id., at 408 [78 S.Ct. at p. 878]. See also Armour Packing Co. v. United States, 209 U.S. 56 [28 S.Ct. 428, 52 L.Ed. 681] (1908), in which we held that, for venue purposes, violations of the Elkins Act, 32 Stat. 847, were continuing offenses. In that case the statute specifically provided that ‘[e]very violation . . . shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed or through which the transportation may have been conducted . . . .’Id., at 73 [28 S.Ct. at p. 432].” (397 U.S. at pp. 120-121, fn. 16 [90 S.Ct. at p. 863].)

Referring to the draft registration law’s history, the court continued, in language particularly relevant to the case at hand: “There is also nothing inherent in the act of registration itself which makes failure to do so a continuing crime. Failing to register is not like a conspiracy which the Court has held continues as long as the conspirators engage in overt acts in furtherance of their plot. [Citations.] It is in the nature of a conspiracy that each day’s acts bring a renewed threat of the substantive evil Congress sought to prevent. The fact that the first draft registrations clearly were viewed as instantaneous events and not a continuing process indicates that there is nothing inherent in the nature of failing to register that makes it a continuing offense.” (Toussie, supra, 397 U.S. at p. 122 [90 S.Ct. at p. 864].)

The majority’s third error is to drift into the Sargasso Sea of what they call “the broader statutory scheme” (maj. opn., ante, at p. 527), where their analysis, not surprisingly, is becalmed. They concede that the language of Penal Code section 290, subdivision (f), does not establish a continuing offense. They state their intention to determine whether “ ‘the nature of the crime involved is such that [the Legislature] must assuredly have intended that it be treated as a continuing one.’ ” (Maj. opn., ante, at p. 526, quoting Toussie.) But section 290, subdivision (f), does not create a continuing crime; a fortiori, it reveals no intent to treat a violation of the crime as continuing.

The majority’s contrary conclusion rests on the statement that “[e]nsuring offenders are ‘readily available for police surveillance’ [citation] depends on timely change of address notification. Without it law enforcement efforts will be frustrated and the statutory purpose thwarted.” (Maj. opn., ante, at p. 527.)

But when the offender fails to register, the police do not know his or her whereabouts and the harm has occurred. The “substantive evil” the Legislature sought to prevent is prevented, if at all, by punishing failure to register, and not by construing the offense as continuing indefinitely. Such an interpretation may undermine the legislative purpose, for it may encourage convicted sex offenders never to reveal their whereabouts once they have initially violated the law. At a minimum, even under the majority’s erroneous approach of trying to divine legislative intent in the face of clear statutory language, it cannot be said that the Legislature “must assuredly have intended that [the offense] be treated as a continuing one.” (Toussie, supra, 397 U.S. at p. 115 [90 S.Ct. at p. 860],)³

There are other errors. The majority declare that “when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled.” (Maj. opn., ante, at p. 526.) That analysis is plainly incorrect in the context of the statute before us, and in any event it begs the question whether defendant completed the crime when he allegedly failed to register 10 days after moving.

And it may or may not be true that “[s]imply put, ‘ex post facto’ means ‘after the fact’; it does not mean ‘during the fact.’ It therefore does not encompass offenses for which the defendant is prosecuted or punished based on acts continuing beyond a change in the law.” (Maj. opn., ante, at p. 531.) But again that comment begs the question when defendant completed the alleged offense, if he committed it.

It is worth recalling that the United States Supreme Court expressed concern in Toussie that defining failure to register for the draft would expand the five-year statute of limitations to thirteen years. Given the lack of statutory support for their conclusion, the majority seem remarkably unconcerned about imposing, among other burdens, increased punishment in violation of the ex post facto clause on this defendant and a lifelong statute of limitations on any other who commits the crime of failing to register as a sex offender.

Ironically, defendant would probably be the first to agree with the majority’s assertion that “lack of compliance [is] fatal.” (Maj. opn., ante, at p. 527.) The question before us evidently is not trivial for this defendant. His lawyer stated at the preliminary hearing: “[T]his is a case where my client is looking at three strikes. He is 52 years old. It’s effectively going to be a death sentence because he failed to register as a sex offender within ten days, not because he has picked up a new case.”

Congress evidently disliked Toussie. It amended federal law to make failure to register for the draft a continuing offense. (U.S. v. Kerley (7th Cir. 1988) 838 F.2d 932, 935.) Our Legislature can do the same if it wishes with regard to subdivision (f) of Penal Code section 290. We should not usurp its province. I do not doubt the sincerity of the majority’s belief that today’s decision bolsters legislative intent, but in fact the contrary is true: their decision undermines the meaning of the federal and state ex post facto clauses, which as constitutional provisions embody the will of the people of the United States and of California, respectively. (See U.S. Term Limits, Inc. v. Thornton (1995) 514 U.S. 779, 821, fn. 31 [115 S.Ct. 1842, 1864, 131 L.Ed.2d 881, 911].) In balancing the need to protect the public from possible recidivism with the desirability of forbidding retroactive punishment, as with most other matters involving conflicting policies, lawmaking bodies “possess superior resources with which to weigh all potentially affected interests.” (DeLoach v. Companhia de Navegacao Lloyd Brasileiro (3d Cir. 1986) 782 F.2d 438, 441.)

A few final paragraphs are in order regarding this case. If defendant’s counsel is correct that he is facing a three strikes term if convicted of violating Penal Code section 290, subdivision (f), he may be sentenced to twenty-five years to life imprisonment for misdemeanor recidivism. (Pen. Code, §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).) Such a result would be intolerable.

First, the punishment would be disproportionate to the crime. No matter how unsavory defendant’s past may be, a sentence up to life imprisonment for a current misdemeanor is baroque and medieval in concept and inconsistent with the fundamental principles of a just society.

Second, “the Ex Post Facto Clause not only ensures that individuals have ‘fair warning’ about the effect of criminal statutes, but also ‘restricts governmental power by restraining arbitrary and potentially vindictive legislation.’ ” (Landgraf v. USI Film Products (1994) 511 U.S. 244, 266-267 [114 S.Ct. 1483, 1498, 128 L.Ed.2d 229].) What could be more arbitrary and potentially vindictive than allowing the People, as defendant argued, to “pick[] and choos[e] . . . when the crime was committed . . .”? Under the majority’s reasoning, which deprives defendant of ex post facto protection, even if he were brought to trial in 2010 the People could choose, at their pleasure, any date between 1994 and that trial date to charge commission of the offense, no matter what the penal consequences. This amounts to justice gone awry.

Under the majority’s rationale, the consequences of the exercise of the district attorney’s pleasure may have more severe effects on defendant than would otherwise be the case. If he can “pick[] and choos[e] . . . when the crime was committed . . . ,” the effect will be to subject defendant to an indefinite statute of limitations and the maximum possible punishment that may have existed at any time between commission (and completion) of the offense and the date of trial. The law does not support such an arcane result, and neither can I.

The Court of Appeal’s judgment should be affirmed.

1 And the majority misunderstand Study v. State (Ind.Ct.App. 1992) 602 N.E.2d 1062. The crime declared to be continuing was “loan brokering without first registering” (id. at p. 1068), not merely failing to register.

2 The drafter of the People’s opening brief stated that Duncan offered “[t]he clearest explanation . . . this writer has discovered . . . .” The majority venture no farther. Surely this court can do better. Fogel reveals that Duncan is a loose nail on which to hang the definition of a continuing offense for all California courts.

After providing its dubious definition of a continuing offense the Maryland court incorrectly gave, as an example of a continuing offense, “failure to register for the draft, Fogel v. United States, 162 F.2d 54, 55 (5th Cir.), cert, denied, 332 U.S. 791, 68 S.Ct. 99, 92 L.Ed. 373 (1947), rev’d per curiam on other grounds, 335 U.S. 865, 69 S.Ct. 136, 93 L.Ed. 411 (1948) . . . .” (Duncan v. State, supra, 384 A.2d at p. 459.)

This citation was wrong on two points. Most important for this case, the majority opinion in Fogel in fact was disapproved in Toussie on the precise point Duncan attempted to make. (Toussie, supra, 397 U.S. at p. 121 & fn. 17 [90 S.Ct. at p. 863].) Toussie was decided some years before Duncan, and the evident lapse in the Maryland court’s research is inexcusable. Also, contrary to Duncan, Fogel v. United States, supra, 162 F.2d 54, was not reversed. Rather, certiorari was denied. (Fogel v. United States (1947) 332 U.S. 791 [68 S.Ct. 99, 92 L.Ed. 373].) What the United States Supreme Court reversed was another cause involving the same defendant. (Fogel v. United States (5th Cir. 1948) 167 F.2d 763, revd. per curiam (1948) 335 U.S. 865 [69 S.Ct. 136, 93 L.Ed. 411].)

To rely on a Maryland case revealing such ineptitude is, on its face, to err.

3 This is so despite United States v. Bailey (1980) 444 U.S. 394 [100 S.Ct. 624, 62 L.Ed.2d 575], in which the court mentioned that escape from federal custody must be a continuing offense because “[g]iven the continuing threat to society posed by an escaped prisoner, ‘the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.’ ” (Id. at p. 413 [100 S.Ct. at p. 636].) Bailey did not overrule Toussie, however; in fact it relied on it but explained that “the tension between the doctrine of continuing offenses and the policy of repose embodied in statutes of limitations .... is wholly absent where, as in the case of [the escape statute], the statute of limitations is tolled for the period that the escapee remains at large.” (Id. at pp. 413-414 [100 S.Ct. at p. 636].) Bailey should be read to state an unusual exception to Toussie’s general rules. (See also U.S. v. Vowiell (9th Cir. 1989) 869 F.2d 1264, 1268-1269.)