People v. Wicker CA2/6

Filed 11/6/13 P. v. Wicker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B243616
(Super. Ct. No. MA055805)
Plaintiff and Respondent, (Los Angeles County)
v.
ANDRE WICKER,
Defendant and Appellant.
Andre Wicker appeals from the judgment following his conviction by jury
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of failure to register as a sex offender (Pen. Code, § 290, subd. (b)). The trial court
sentenced him to three years in state prison. Appellant challenges the sufficiency of the
evidence to support his conviction, and contends the court committed prejudicial error by
permitting read back of a closing argument in which the prosecutor misstated the
requisite intent for a failure to register. He further claims he is entitled to additional days
of presentence credit, and respondent correctly concedes the point. We shall modify the
judgment accordingly. In all other respects, we affirm the judgment.
Factual and Procedural Background
Appellant registered as a sex offender for many years, beginning in 2002.
He first registered with Ilene Anderson, at the Los Angeles County Sheriff's Department
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All statutory references are to the Penal Code unless otherwise stated.
(LASD) Lancaster station. Anderson met with him on many other occasions through
2011. On each occasion, Anderson explained the registration requirements to him, using
a form which describes each requirement. Relevant excerpts from the form she used in
2010 follow: "My responsibility to resister as a sex offender is a lifetime requirement."
"Upon coming into, or when changing my residence address within a city and/or county
in which I am residing, I must register or re-register in person within five (5) working
days with the law enforcement agency . . . ." "If I change my registered address . . . I
must inform the last registering agency . . . within five (5) working days before or after I
leave." (Ibid.) "If I have more than one residence address at which I regularly reside . . .
I must register in person, within five (5) working days at each address with the law
enforcement agency having jurisdiction over such residence." "If I no longer reside at a
registered address I must inform . . . the registering agency having jurisdiction over that
address within five (5) working days before or after I leave." Each time he met with
Anderson, appellant signed a statement acknowledging he "read, understood and initialed
each registration requirement."
In registering with Anderson, appellant often reported he resided at 817
Landsford Street, in Lancaster, the residence of his mother and stepfather, Christine
Williams-Thomas and Clarence Thomas (Landsford residence). On May 19, 2011, he
registered with the Las Vegas Metropolitan Police Department (LVMPD). Sharon
Roberson of LVMPD processed his registration. She told appellant he must advise
LVMPD within 48 hours of any change in his residence. He did not contact Roberson
after May 19, 2011. Appellant last contacted Anderson of LASD on December 6, 2011,
when he telephoned and said he had moved to Las Vegas. Anderson retired from LASD
in March 2012. Melissa Dorsey of LASD then processed sex offender registrations in
Lancaster. Appellant never registered with her.
On April 3, 2012, LASD Deputies Alex Vallozzi and Cesar Huerta
conducted a registration compliance check at the Landsford residence. They found
Thomas sitting outside and asked him about appellant's location. Appellant appeared at
the front door, and Huerta asked if he was going to register. He said he was going to
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register "as soon as possible." Thomas and Williams-Thomas testified appellant often
went to Nevada for a few days and returned to the Landsford residence. Thomas testified
appellant lived at the Landsford residence from January through early April 2012.
Appellant did not testify or call any defense witnesses at trial.
DISCUSSION
Substantial Evidence
Appellant contends there is not sufficient evidence to support his failure to
register conviction in violation of section 290, subdivision (b). We disagree.
In reviewing the sufficiency of the evidence, we review the entire record in
the light most favorable to the prosecution "to determine whether it contains evidence
that is reasonable, credible, and of solid value, from which a rational trier of fact could
find the defendant guilty beyond a reasonable doubt." (People v. Silva (2001) 25 Cal.4th
345, 368.) We do not resolve credibility issues or evidentiary conflicts, and presume in
support of the judgment the existence of every fact the jury could reasonably have
deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) A reversal is
unwarranted unless there is no substantial evidence to support the finding under any
hypothesis whatever. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Appellant claims there is not sufficient evidence to support his failure to
register conviction because there is no evidence he knew he was required to "reregister in
Lancaster or that he willfully failed to reregister in Lancaster." He also claims he did
"not cancel or abandon his registration in Lancaster but maintained registration in two
locations." The record belies his claims. Appellant repeatedly acknowledged in writing
that he understood the registration requirements. He acknowledged he was required to
register when he moved into a city or county, within or outside California, and upon
moving, to notify the law enforcement agency of his leaving. Anderson testified that
appellant called the LASD Lancaster station, in December 2011, and reported he had
moved to Las Vegas. He registered in Nevada on May 19, 2011. Appellant returned to
Lancaster sometime during the first months of 2012 but did not register in California.
Substantial evidence supports the jury's finding that appellant knowingly and willfully
failed to register in 2012.
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No Prejudice Resulted From the Reading of Closing Argument to the Jury
Appellant contends the trial court committed prejudicial error by allowing
read back of a closing argument in which the prosecutor misstated the requisite intent for
a failure to register. We disagree.2
Background
During its deliberations, the jury sent several questions to the trial court. In
response, the court allowed the prosecutor and defense counsel to present no more than
ten minutes of additional argument to address the issues raised by the jury. The jury later
asked to hear the additional arguments again. The court granted its request.
Immediately after the reporter read back the additional arguments, the court
admonished the jury as follows, regarding an error in the arguments: "One other
clarification or admonition I do want to give all the jurors. I believe there was some
mention made about this being a strict liability crime. That's inaccurate. I want to refer
you to page 8, it is CALCRIM 1170, which defines all of the elements of this offense.
And element 3 discusses in detail the knowledge requirement."
The trial court acted within its discretion in granting the jury's request for a
read back of the additional closing arguments. (People v. Sims (1993) 5 Cal.4th 405,
452-453, overruled on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-
1032.) Appellant argues the read back was prejudicial because the prosecutor's additional
closing argument misstated the requisite intent. We disagree. The trial court properly
called the prosecutor's misstatement to the attention of jurors and directed them to the
instruction which correctly described the requisite intent. (People v. Beltran (2013) 56
Cal.4th 935, 954-956, id. at p. 956 [prosecutor's misstatement of law in closing argument
not prejudicial where the court "properly refocused the jury on the relevant mental
state"].)
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Respondent argues appellant waived this claim. We shall consider the claim on
the merits.
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Section 4019 Credits
Appellant argues he is entitled to 75 additional days of presentence conduct
credit. Respondent agrees in large part, but correctly asserts appellant is entitled to 74
additional days of such credit. The court awarded 219 days of presentence credit,
including 147 days of actual custody credit, and 72 days of conduct credit. Under the
version of section 4019 applicable to his sentence, appellant is entitled to receive two
days of conduct credit for every two days of actual presentence custody. (§ 4019,
subd. (f)) ["It is the intent of the Legislature that if all days are earned under this section,
a term of four days will be deemed to have been served for every two days spent in actual
custody.]") Appellant was remanded on April 3, 2012, and committed to state prison on
August 27, 2012. Thus, he served 147 days of presentence custody between and
including those dates, and he is entitled 146 days of presentence conduct credit, for a total
of 293 days of presentence credit. We will modify the judgment accordingly.
DISPOSITION
The judgment is modified to award appellant 293 days of presentence
credit: 147 days for actual custody and 146 days for conduct. (§ 4019.) The trial court
shall amend the abstract of judgment accordingly and transmit a certified copy to the
Department of Corrections. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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Lisa Chung, Judge
Superior Court County of Los Angles
______________________________
Marta I. Stanton, under Appointment by the Court of Appeal, for Defendant
and Appellant André Wicker
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Blythe J.
Leszkay, Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
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