People v. Franklin

THE PEOPLE, Plaintiff and Respondent, v. DONALD DWAYNE FRANKLIN, Defendant and Appellant. No. B109817 (Super. Ct. No. LA023010) California Court of Appeal Second Appellate District Division Seven Filed January 21, 1998         APPEAL from a judgment of the Superior Court of Los Angeles County. Sandy R. Kriegler, Judge. Affirmed.
        William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
        Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Christina Russotto, Deputy Attorney General, for Plaintiff and Respondent.

        The trial court found appellant guilty of violating the sex offender registration law (Pen. Code § 290, subd. (f)), a felony, and found true two "strike" allegations (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Appellant was sentenced to state prison for 25 years to life.
        Appellant contends (1) the duty to notify law enforcement of an address change exists only "while residing in California" (Pen. Code, § 290, subd. (a)(1)) not when one moves to Texas and (2) his two convictions suffered in one proceeding constitute one "strike."
        We find appellant's contentions without merit and affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND         Appellant was charged with two counts of child molestation (Pen. Code, § 288, subd. (a)), two violations of the sex offender registration law (Pen. Code, § 290, subd. (f)), and various felony conviction enhancements and "strikes." Appellant waived jury, in return for which the District Attorney agreed to the dismissal of both child molestation charges. The trial court acquitted appellant of one registration violation count and convicted him of one. Both "strikes" were found true.
        Appellant was subject to the sex offender registration law as a result of his 1985 convictions of child molestation and child sodomy.
        In the latter part of 1994 and early part of 1995 appellant lived in North Hollywood and Wilmington. On May 1, 1995, appellant and his family moved to Texas. Appellant did not notify any California law enforcement agency of his address change. In December 1995 appellant was arrested in Texas and thereafter returned to California.
        Appellant did not testify or present any evidence.

DISCUSSION
1. Appellant contends the duty to notify law enforcement of an address change exists only "while residing in California" (Pen. Code, § 290, subd. (a)(1)) not when one moves to Texas.
        Penal Code section 290 imposes registration and address change notification duties upon persons convicted of specified sexual offenses. These duties apply to "Every person described in paragraph (2), for the rest of his or her life while residing in California . . . ." (Pen. Code, § 290, subd. (a)(1).) (Italics added.)
        "If any person who is required to register pursuant to this section changes his or her name or residence address, the person shall inform, in writing within five working days, the law enforcement agency or agencies with whom he or she last registered of the new name or address." (Pen. Code, § 290, subd. (f).) A violation of this notification duty by a convicted child molester is a felony.
        Appellant contends his statutory duty to notify law enforcement of his address change simultaneously began and ended when he moved from California to Texas. Not so.
        The duty to register and give notice of address changes is a continuing one. (Wright v. Superior Court (1997) 15 Cal.4th 521.) As our Supreme Court has observed: "Plainly, the Legislature perceives that sex offenders pose a 'continuing threat to society' [citation] and require constant vigilance." (Id. at p. 527.)
        We hold that "while residing in California" (Pen. Code, § 290, subd. (a)(1)) applies to a person who changes his residence from California to a residence outside California. When appellant departed his California residence he did not yet reside in Texas. The departure, however, created a notification of address change duty. Had appellant fulfilled this duty, established residency in Texas, and then moved again (but not back to California) he could properly make the argument he now asserts: he was not "residing in California."
        Appellant's contention is without merit.

2. Appellant contends his two convictions suffered in one proceeding constitute one "strike."
        Appellant contends these convictions constitute only one "strike" because they were not "brought and tried separately" (§ 667, subd. (a)(1)). He is mistaken.
        The statute makes clear that "a prior conviction of a felony" is solely determined by the definitions of section 667, subdivision (d). That subdivision applies "notwithstanding any other law" (§ 667, subd. (d)). There is nothing in subdivision (d) which restricts a prior conviction of a felony to a "charge[ ] brought and tried separately," a restriction applicable to section 667, subdivision (a)(1) priors and which the Legislature could hardly have overlooked. Additionally, the Legislature included an analogous restriction concerning current charges in subdivision (c)(6). (See People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, 912-914; People v. Allison (1995) 41 Cal.App.4th 841, 845.)

DISPOSITION         The judgment is affirmed.

We concur:
        LILLIE, P.J.
        NEAL, J.


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