People v. Graves CA3

Filed 4/12/23 P. v. Graves 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NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C096200
v. (Super. Ct. No. 21F4947)
BRIAN LEWIS GRAVES,
Defendant and Appellant.
A jury found defendant Brian Lewis Graves guilty of failure to register as a
transient sex offender and failure to update his registration annually. The trial court
imposed an aggregate sentence of two years eight months for this case and another case
not involved in this appeal.
1
Defendant now contends (1) the trial court erred in denying his motion for entry of
a judgment of acquittal pursuant to Penal Code section 1118.1,1 and (2) the trial court
should have granted his request to represent himself. The People agree reversal is
appropriate because the prosecution failed to prove an essential element of the charges:
that defendant resided in California during the relevant time period.
Under the circumstances, we will reverse the convictions and direct the trial court
to enter a judgment of acquittal.
BACKGROUND
Defendant was convicted of sex crimes in 2003, 2015, and 2017, requiring sex
offender registration. The California Sex and Arson Registry (CSAR) is a state database
that tracks required registration. A registrant is required to register annually within five
working days of their birthday. (§ 290.012, subd. (a).) In addition, a transient registrant
living in California must update their information at least every 30 days. (§ 290.012,
subd. (c).)
On October 11, 2019, Justin Benson was the officer of the day in the Redding
parole office. Defendant reported to the office after being released from county jail.
Benson discussed the conditions of parole with defendant, including defendant’s duty to
register as a sex offender.
Defendant updated his registration on January 23, 2020. On March 3, 2020,
CSAR automatically recorded a transient violation when defendant did not update his
registration. Defendant updated his registration on May 21, 2020 and June 4, 2020, but
CSAR recorded another transient violation on July 5, 2020 when defendant failed to
update his registration. CSAR recorded an annual violation on January 8, 2021, after
1 Undesignated statutory references are to the Penal Code.
2
defendant failed to update his registration within five working days of his December 28
birthday.
On June 25, 2021, Benson called the records supervisor at the Redding Police
Department to inquire about defendant’s failure to update his sex offender registration for
a year. Because defendant was on parole, he was required to inform the Redd ing parole
office before leaving the area or moving. The office had not received information that
defendant had left the area. Previously, when Benson had interacted with defendant or
searched for him, defendant had been located in Redding in the area near his sister’s
house.
The People initially charged defendant with felony failure to register as a transient
sex offender (§ 290.012, subd. (c) -- count 1) and failure to update his registration
annually (§ 290.012, subd. (a) -- count 2). Defendant’s case was tried by a jury.
At the close of the prosecution’s evidence, defense counsel made a verbal motion
pursuant to section 1118 on the ground that there was insufficient evidence to
demonstrate that count 1 was a felony. Defense counsel also made a general motion
under section 1118 as to count 2. Defendant asserts the trial court clearly understood the
motion was made under section 1118.1 rather than section 1118, and the Attorney
General does not disagree.2 Section 1118.1 provides, in pertinent part: “In a case tried
before a jury, the court on motion of the defendant or on its own motion, at the close of
the evidence on either side and before the case is submitted to the jury for decision, shall
order the entry of a judgment of acquittal of one or more of the offenses charged in the
accusatory pleading if the evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal.” We will refer to defendant’s motion as
one for a judgment of acquittal.
2 Section 1118.1 pertains to a case, such as this one, tried before a jury, whereas
section 1118 pertains to a case tried by the court without a jury.
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The trial court amended the transient registration count to make it a misdemeanor
and denied the motion for a judgment of acquittal. It instructed the jury on the elements
of transient and annual sex offender registration violations, including that the prosecution
must prove that defendant resided in Redding.
In closing argument, defense counsel said Benson testified he had not been
informed defendant left the state, but that the absence of information about whether
defendant left California was not proof that defendant resided in California. The
prosecutor responded that defendant had been in Redding for years, he lacked housing,
his family lived in Redding, he lived by his family, and Benson had previously known
where to find defendant. The jury found defendant guilty on both counts.
The trial court sentenced defendant to the middle term of two years on the annual
registration count, plus eight months consecutive in an unrelated case, and 164 days
concurrent on the transient registration count. The trial court awarded defendant 625
days of credit against the consecutive sentences.
DISCUSSION
Among other things, defendant contends the trial court erred in denying his motion
for a judgment of acquittal because the People failed to prove he was a California
resident during the relevant time period. The People agree reversal is appropriate.
A defendant is not required to specify the grounds for a motion for a judgment
of acquittal and there is no requirement that the motion be made in a particular form.
(People v. Belton (1979) 23 Cal.3d 516, 521-522; People v. Martinez (1982)
132 Cal.App.3d 119, 127-130.) We review a trial court’s denial of a motion for a
judgment of acquittal “under the standard employed in reviewing the sufficiency of the
evidence to support a conviction.” (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
“ ‘[W]e do not determine the facts ourselves. Rather, we “examine the whole record
in the light most favorable to the judgment to determine whether it discloses substantial
evidence -- evidence that is reasonable, credible and of solid value -- such that a
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reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ”
(Ibid.) In reviewing an order denying a motion for a judgment of acquittal made at the
close of the prosecutor’s case-in-chief, we focus on the state of the evidence as it stood at
that point in time. (Ibid.)
Defendant was charged in count 1 with a violation of section 290.012,
subdivision (c), which provides in relevant part that “every person subject to the [Sex
Offender Registration] Act, while living as a transient in California, shall update his or
her registration at least every 30 days, in accordance with Section 290.011.” And in
count 2, defendant was charged with a violation of section 290.012, subdivision (a),
which provides in relevant part that “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.” Section 290, subdivision (b)
specifies that the relevant statutory scheme applies to a person “while residing in
California . . . .”
People v. Wallace (2009) 176 Cal.App.4th 1088 is instructive. In Wallace, the
defendant, a sex offender, was convicted of failing to notify appropriate authorities within
five working days of changing his address or location, failing to register within five days
of changing his address or location, and failing to complete his annual registration, even
though there was no evidence of the defendant’s whereabouts after he left his last
address. (Id. at pp. 1091, 1094, 1103.) Interpreting the same language as is relevant in
this case (see Wallace, at p. 1105 [applying § 290, former subd. (a)(1)(D)]), the court in
Wallace held that the defendant could only violate the statute if he resided in California
during the relevant time period. (Wallace, at pp. 1105-1107.) Although the defendant
had a prior registration history in California, there was no evidence of his whereabouts
during the relevant time to support a reasonable inference that he was in California.
(Id. at pp. 1103, 1107.) The court would not shift the burden to the defendant to prove
that he was residing outside California. (Id. at p. 1103.)
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Here, the prosecutor argued to the jury that People’s exhibit 3 (the sex registration
packet) and a parole officer’s testimony established that defendant resided in Redding.
The prosecutor pointed to the facts that defendant was homeless, he lived by his family in
Redding, he had a long history of residing in Redding, his parole officer knew the general
area in Redding where defendant lived as a transient, and the parole officer had
previously located defendant in Redding. But People’s exhibit 3 does not contain
information about defendant’s whereabouts during the dates alleged in the complaint, i.e.,
June 25, 2021, when defendant allegedly failed to re-register as a transient, and
December 28, 2020, when defendant allegedly failed to complete his annual registration.
And although defendant’s parole officer testified about where defendant generally resided
and where the parole officer had located defendant in the past, the parole officer did not
testify about where defendant was living or located in December 2020 or June 2021.
The evidence showed defendant was in California when he met with the parole officer
on October 11, 2019, and when he updated his registration on May 21, 2020 and June 4,
2020, but after those dates, there was no proof that defendant resided in California.
There was also no evidence about where defendant was arrested in 2021. The jury could
not reasonably infer from the lack of evidence about defendant’s whereabouts in
December 2020 and June 2021 that defendant remained in Redding after he last updated
his registration information in June 2020. (Wallace, supra, 176 Cal.App.4th at pp. 1103,
1107.) And it would be improper to shift the burden to defendant to prove that he moved
outside the state during the relevant period and was therefore not subject to the
registration requirements. (Id. at p. 1103.)
Because insufficient evidence supports the convictions, we will reverse the
judgment and direct the trial court to enter a judgment of acquittal on counts 1 and 2.
Given our conclusion, we need not address defendant’s other claims.
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DISPOSITION
The convictions are reversed and the trial court is directed to enter a judgment
of acquittal.
/S/
MAURO, Acting P. J.
I concur:
/S/
KRAUSE, J.
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McADAM, J., Dissenting.
I respectfully dissent. I conclude there was substantial evidence to support the
jury verdict.
Defendant Brian Lewis Graves failed to update his annually required sex offender
registration on December 28, 2020, and failed to update his registration as a transient on
June 25, 2021. These key dates are six months and one year, respectively, from the last
documented interactions defendant had with the Sex Offender Registration Unit in Shasta
County. Despite the lack of direct evidence or more recent circumstantial evidence of
proof of residence, at trial the prosecution produced reasonable, credible, and solid
circumstantial evidence to meet its burden and establish the residence requirement for
both sex registration offenses beyond a reasonable doubt.
According to the California Sex and Arson Registry (CSAR) report detailing
defendant’s registration history, defendant has a current 17-year history of residing in
Shasta County starting with his initial conviction in Shasta County in 2003. At that time,
and for the next three years, defendant reported living at an address in Anderson in Shasta
County. From 2006 to June 2020, defendant reported various other addresses in Shasta
County, specifically in Redding, Anderson, Shasta Lake, and occasionally as a transient.
The record also contains the packet showing defendant twice more pleaded guilty to
indecent exposure in Shasta County Superior Court in 2007 and 2015. In December
2009, defendant registered with the Shasta County Sheriff’s Department’s Sex Offender
Registration Unit. In April 2017, defendant resided in the Shasta County jail. Upon his
release from incarceration in December 2018, defendant again registered as a Shasta
County resident. Defendant most recently registered as a transient (i.e. homeless) in
Shasta County on May 21, 2020, and June 4, 2020. Under the heading “Vehicle(s),” the
CSAR report stated, “NO DATA FOUND.”
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Parole Agent Justin Benson testified defendant was under the supervision of the
parole office in Shasta County. While Agent Benson was not defendant’s supervising
parole officer, Agent Benson periodically interacted with defendant during the prior four
or five years. When he has searched for defendant, Agent Benson has found him
generally in the Victor area of Redding and testified defendant stays close to his sister’s
Redding home. Parolees are not allowed to leave the county without notifying the parole
office, and Agent Benson had not received any notice defendant had departed.
When evaluating defendant’s challenge to his conviction based on the sufficiency
of the evidence, we “presume[ ] in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence,” and we “examine the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence — 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.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Although it is the jury’s duty to acquit a
defendant if it finds the circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other innocence, it is the jury, not the
appellate court that must be convinced of the defendant’s guilt beyond a reasonable
doubt.” (Id. at pp. 1053–1054.) “ ‘ “If the circumstances reasonably justify the trier of
fact’s findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment. [Citation.]” ’ ” (Id. at p. 1054.)
Here, the evidence demonstrates defendant has long-established ties to and
residency in Shasta County over the prior 17 years. He engages in his criminal activities
in Shasta County. He stays near his family in Shasta County and Agent Benson often
found him in this area. The jury also received evidence defendant is transient (homeless)
and has no known car. He was on parole and was not allowed to leave without notifying
the parole department. Taken together, this solid, credible circumstantial evidence gives
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rise to the reasonable and logical inference defendant established his residence in
Redding in 2003 and has not left since.
Direct evidence of the defendant’s residence the day he must register is most often
likely to be unavailable, as by definition, these registrants are evading the authorities.
Thus, the prosecution most often will be required to use circumstantial evidence to prove
its case. “ ‘Substantial evidence includes circumstantial evidence and any reasonable
inferences drawn from that evidence. [Citation.]’ ” (People v. Brooks (2017) 3 Cal.5th 1,
57.) And of course, the law does not favor direct evidence over circumstantial evidence.
(CALCRIM No. 223.)
Here, the trial court properly instructed the jury on all necessary matters, including
the presumption of innocence, the burden of proof beyond a reasonable doubt, proof by
circumstantial evidence, the one witness rule to prove any fact, the production of
evidence rule that neither side is required to produce or call all witnesses who may have
information about the case, and the element of residency.
While one might want to see a stronger case with testimony from an arresting
officer or the defendant’s sister about defendant’s whereabouts and not just hear from a
parole agent, the jury was well within the law to reach a verdict on the circumstantial
evidence produced.
Following these instructions, the prosecution and defense traded closing
arguments almost exclusively focused on the evidence in the record regarding
defendant’s residence. Properly instructed and based upon the evidence, the jury came to
the logical abiding conviction the evidence established defendant remained a resident of
Shasta County six months after his most recent registration when he failed to register in
December 2020, and six months after that when he failed to register in June 2021.
My colleagues rely on People v. Wallace (2009) 176 Cal.App.4th 1088. The
decision is poorly reasoned and should not be followed. In Wallace, the trial court failed
to instruct the jury the prosecution had to prove the defendant’s residence in the local
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jurisdiction. (Id. at p. 1104.) Worse, when asked whether the prosecution had to prove
the defendant’s residence to convict him for violating the annual registration requirement,
the trial court affirmatively told the jurors residency was not an element of the charge.
(Id. at p. 1107.) Thus, in Wallace the appellate court was examining whether these errors
were harmless beyond a reasonable doubt, not whether a properly instructed jury could
determine on the evidence defendant was a resident. (Id. at pp. 1104, 1107.) In this
context, the trial court wrongfully relieved the prosecution of its burden, and thus, it
should be no surprise that insufficient evidence was produced. Simply put, the element
of the defendant’s residence was not an issue at trial. Therefore, drawing conclusions
here about the sufficiency of evidence based on what failed is a meaningless exercise.
The decision in Wallace should not inform any court about how to adjudicate the
residency issue of a sex registration case –– other than, to underscore that the trial judge
should properly instruct.
By reversing the judgment, the majority is concluding that the trial judge and the
jury did not do their respective jobs. I disagree. The cornerstone of a jury trial has long
been the application of common sense and that is what prevailed here. (People v. Collis
(1916) 30 Cal.App. 656, 663.) For the reasons stated herein, I would affirm the
judgment.
\S\ ,
McADAM, J.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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